Lalit Bagrecha vs State of Rajasthan

Harbans Lal, J.—The revision petition u/s 397 read with Section 401 Cr.P.C. is directed against the order dated 14.6.2002 passed by the learned Sessions Judge, Udaipur in Sessions case No.392/99 whereby he has dismissed the application u/s 311 Cr.P.C.

The relevant facts are that in the aforesaid Sessions trial the learned Sessions Judge, Udaipur after hearing the final arguments on 30.5.2002 fixed the case for pronouncement of judgment on 6.6.2002. The petitioner filed an application on 31.5.2002 for summoning two witnesses namely Ravi Mandawat and Virendra Dangi to prove the love letters of deceased Smt.Manoj @ Mili. Learned Sessions Judge Udaipur after hearing the parties on the said application held that the power to summon any witness or to examine any person in attendance or to recall or re-examine any person already examined vests in the Court and the parties have no right to get any person summoned and examined as a witness. Learned court also observed that the love letters alleged to be written by the deceased ought to have been produced at the proper stage of trial and the same cannot be allowed to be proved at such a belated stage of the trial and accordingly the application was disallowed.

Learned counsel for the petitioner has contended that Section 311 Cr.P.C. has two parts while the power of the court to summon and examine any person as a witness or to recall or re-examine any person already examined is discretionary, while the second part of the Section is mandatory in nature and it requires and mandates the Court to summon and examine or to recall or re-examine any person whose evidence appears to it to be essential for the just decision of the case. He has argued that the learned court below has not expressed any opinion in the impugned order as to whether the evidence of above two witnesses is essential or not for the just decision of the case and has simply refused the application on the ground that it has been moved at a very belated stage. According to him the power under this Section can be exercised at any stage of the trial and even after the conclusion of the arguments but before the pronouncement of the judgment. He has submitted that a party should not be penalised for the fault of his learned counsel.

He has prayed that only one opportunity may be afforded to the petitioner to examine these witnesses and in case the petitioner fails to examine these witnesses on the dates fixed, no further opportunity may be allowed. He has submitted that the earliest possible date may be fixed in the case so that there may not be any delay in the decision of the case.

Learned Public Prosecutor has supported the order of the court below.

No doubt, the power u/s 311 Cr.P.C. lies in the court as observed by the learned Sessions Judge but it is also well settled that where the evidence of any person appears to the court to be essential to the just decision of the case, the court is duty bound to summon and examine such a witness.

It is also apparent from the perusal of the order that the learned court below has not recorded any finding that the evidence of above said two witnesses is essential or not to the just decision of the case, so the order cannot be sustained and deserves to be set aside and the matter deserves to be remitted back to the learned court below to pass appropriate order on the application after hearing the parties. In case the learned court below comes to a conclusion that the evidence of above said two witnesses is essential to the just decision of the case, the same may be summoned and examined and in case the learned court below finds otherwise, it may proceed accordingly.

This petition is disposed of accordingly.