Jahendra Singh vs State of M.P.

The applicant has filed this criminal revision under Section 397 read with Section 401 of Cr.P.C. against the order dated 22.11.2016 passed by Additional Sessions Judge, Seondha, District Datia in Sessions Trial No. 65/2015, by which the application under Section 311 of Cr.P.C. has been rejected.

The brief facts of the case are that the applicant facing a trial for offences punishable under Sections 147, 148, 302 / 149 of IPC. During the course of the trial the applicant moved an application under Section 311 of Cr.P.C. for praying that the prosecution be directed to examine the witnesses Jahendra Singh, Lakhan Singh, Rahul and Bhagirath, who have been given up by the prosecution. They are important witnesses relating to the dehati nalishi, spot map and seizure memo. Their evidence is material and necessary for just decision of the case. The application was opposed by the public prosecutor stating that Jahendra Singh, Lakhan Singh, Rahul and Bhagirath are interesting witnesses and they have win

over by the accused persons so he does not want to examine these witnesses before the Court. After hearing both the parties vide order dated 22.11.2016, the trial Court dismissed the application which is subject matter of this revision petition.

Learned counsel for the applicant submits that the trial Court has fail to exercise jurisdiction vested in it in accordance with law in the matter of trial without examining the witnesses of the case whose evidence is material and necessary for the fair and just decision of the case. The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. If at the trial it is shown that the persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the prosecution and may, in proper case, regard the failure of the prosecutor to examine such witnesses by exercising it''s power under Section 311 of Cr.P.C., therefore, he prays for setting aside the impugned order.

On the contrary, Public Prosecutor for the respondent/State submits that it would be open to the prosecutor to make a selection of those witnesses who are, in his opinion, necessary for the case and he cannot be compel to examine any witness for the prosecution. In fact the application was filed in order to prolong the trial, therefore, the trial Court has rightly rejected the application. Hence, he prays for dismissal of the revision application.

The Court has heard learned counsel for the parties and perused the impugned order.

Learned counsel for the applicant placed reliance on the judgment in the case of Darya Singh and others Vs. State of Punjab reported in 1965(1) CRLJ 350 in which the Hon''ble Supreme Court held that-

"11. Mr. Bhasin further argued that the murder having taken place in a locality where a large number of citizens resided, it was the duty of the prosecution to have examined in dependent persons staying in the locality to support its case against the appellants and he suggested that if the prosecution failed to examine such witnesses, it was the duty of the Court to have exercised its powers under Section 540 of the Criminal Procedure Code and to call such witness to give evidence. Mr. Bhasin argues that under Section 172 of the Code, it is competent to a Criminal Court to send for the police diaries of a case under trial in such Court, and if the Court had seen the police diaries, it would have easily found whether the statements of any independent eye-witnesses had been recorded or not. If it found that some statements of independent eye-witnesses had been recorded, it should have called them in exercise of its powers under Section 540 of the Code; since this has not been done. It has introduced an infirmity in the trial, and this Court should set aside the conviction of the appellants and send the case back with a direction that the Magistrate should exercise his powers under Section 540 as suggested by Mr. Bhasin. In our opinion, this argument is entirely misconceived. It is well settled that in a murder case, it is primarily for the prosecutor to decide which witnesses he should examine in order to unfold his story. It is obvious that a prosecutor must act fairly and honestly and must never adopt the device of keeping back from the Court eye-witnesses only because their evidence is likely to go against the prosecution case. The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. It is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but, normally he ought to examine all the eye witnesses in support of his case. It may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness-box. If at the trial it is shown that persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. In such a case if the ends of justice require, the Court may even examine such witnesses by exercising its powers under Section 540 ; but to say that in every murder case, the Court must scrutinize the police diary and make a list of witnesses whom the prosecutor must examine is virtually to suggest that the Court should itself take the role of a prosecutor. The powers of the Court under Section 540 can and ought to be exercised in the interests of justice whenever the Court feels that the interest of justice so require, but that does not justify Mr. Bhasin''s contention that the failure of the Court to have exercised its powers under Section 540 has introduced a serious infirmity in the trial itself."

Same view has been taken by the Hon''ble Supreme Court in the case of Bir Singh & others Vs. State of U.P. reported in AIR 1978 SC 59.

From perusal of the impugned order, it appears that the trial Court referred to the judgment passed by Hon''ble Supreme Court in the case of Darya Singh (supra) but the facts of this case have not been examined in the context of law laid down in the case of Darya Singh (supra) which refers the impugned order being passed without application of mind and without assigning any reason. On this ground alone, the rejection of application under Section 311 of Cr.P.C. is bad in law. Accordingly, the impugned order is set aside and the trial Court is directed to decide the said application afresh after affording an opportunity to both the parties.

With the aforesaid direction, this revision application is disposed of.