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Judgment
6 paragraphs · 370 wordsS.K. Chawla, J.
Heard on admission.
By the impugned order dated 30-6-1993 passed by Second Additional Sessions Judge,. Guna, the prosecution application to summon Narmadeshwar Sharma, a clerk in the Office of District Excise Officer, Guna, was allowed u/s 311, Criminal Procedure Code, holding that recording of the evidence of that witness was essential in the ends of justice. In the impugned order it was also observed that as per order of the Court passed in that Criminal case on 18-5-1993, the District Excise Officer, Guna be also summoned to give evidence. The grievance of the petitioner, who is accused in that criminal case u/s 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is that the abovesaid witnesses were not shown in the list of prosecution witnesses in the complaint filed by the Excise Department and examination of the said witnesses would result in filling in of the lacunae of the prosecution case.
There is nothing illegal or improper in the impugned order. Second part of Section 311, Criminal Procedure Code is obligatory and compels the Court to exercise the power to summon a witness, if the just decision of the case demands it. The action may equally benefit the prosecution. It is not necessary that it must benefit the accused. See Jamatraj Kewalji Govani Vs. The State of Maharashtra, The second part of the aforesaid provision compels the Court to examine fresh evidence and the only condition prescribed is that the said evidence must be essential to the just decision of the case. If that results in, what the accused calls, filling in of the lacunae of the prosecution, that is purely a subsidiary factor and cannot be a ground for non-exercise of the powers under the mandatory part of Section 311. In criminal cases, the Court should be reluctant in drawing adverse presumption u/s 114(g) of the Evidence Act on non-production of essential piece of evidence. The proper course is to take that evidence in exercise of the powers u/s 311, Criminal Procedure Code.
There is no force in the present revision, which is summarily dismissed.
I.A. No. I/93 for stay of proceedings of the trial Court does not survive for consideration. The same is rejected.