Mahipal vs State of Rajasthan

H.R. Panwar, J.—By this petition u/s 482 Cr.P.C. accused petitioner challenged the order dated 4.4.2001 passed by the learned District and Sessions Judge, Jaisalmer, in Sessions Case No. 36/99 whereby the application filed by the learned Additional Public Prosecutor for summoning the Tehsildar, Pokaran as prosecution witness was allowed and Tehsildar Pokaran was summoned as prosecution witness.

Briefly stated the facts which are necessary to dispose of this petition are that the accused petitioner is facing trial before the learned Trial Court for the offence Under Sections 302, 394, 323/34 and 324 I.P.C.

After investigation police laid challan against the petitioner and prosecution examined prosecution witnesses. The case of the prosecution is that on 14.2.1999 injured Murli Manohar was admitted to Pokaran Hospital and his statement was recorded by the Tehsildar, Pokaran. Subsequently, injured Murli Manohar succumbed to injuries sustained on 14.2.1999 in the hands of the accused petitioner. The copy of the statement was supplied to the accused petitioner along with the charge sheet but due to inadvertence Tehsildar Pokaran was not cited as witness in the calendar of witnesses. However, when the case came up for final arguments on 23 March 2001. On this date i.e. 23.3.2001 learned Additional Public Prosecutor appearing before the Trial Court filed an application u/s 311 and 242 Cr.P.C. stating therein that on 14.2.1999 statement of injured Murli Manohar was recorded in Pokaran Hospital by the then Tehsildar, Pokaran. Copies of those statements have already been supplied to the accused but due to inadvertently the name of the then Tehsildar, Pokaran was not mentioned in the calender of list of witnesses. It was further mentioned that he is material witness. Similarly on 19.7.1999 the statement of injured Murli Manohar was recorded by H.C. Ali Khan. Copies of whose statements have also been supplied to the accused. It was mentioned in the said application that Murli Manohar died of due to the injuries caused and as such requested the learned trial court to summon these above-named persons as prosecution witnesses.

By the order impugned dated 4.4.2001, the learned Trial Court partly allowed the application dated 23.3.2001 filed by the prosecution and directed to summon the then Tehsildar, Pokaran as a prosecution witness and prosecution''s request for summoning Ali Khan Head Constable was rejected.

Being aggrieved of the order impugned, the accused petitioner filed this application u/s 482 Cr.P.C.

I have heard learned Counsel for the petitioner and the learned Public Prosecutor. It was contended by the learned Counsel for the petitioner that the purpose of moving such an application was for filing up the lacuna in the prosecution case at the final stage of arguments of the case. He further contended that the learned Trial Court has committed error in calling the then Tehsildar, Pokaran as a prosecution witness. On the other hand, learned Public Prosecutor supported the order impugned.

Section 311 Cr.P.C. of 1973 categorically lays down that any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as witness, or examine any person in attendance, though not summoned as a witness; or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it be essential to the just decision of the case. Thus, it is clear that u/s 311 of Cr.P.C., the Court has got wide power to summon any person as witness at any stage of inquiry and trial and as such, there is no limitation of power conferred on Court, but it is well settled law that Court should not allow a particular person as witness in order fill up the lacuna left by it. The Court must exercise this power with due care and diligence.

Learned Counsel for the petitioner relied on the judgment of this Court in Balwant Singh and Ors. v. State reported in 1986 Cri.L.J. 1374. In that case, after closure of the arguments at the stage of final argument prosecution sought permission and prosecution witness was recalled by the Trial Court to explain whether weapon was used by sharp edged side or blunt side. This Court quashed the order of such recall. He further relied on the judgment of Hon''ble Supreme Court in Meer Mohammed Umar and Ors. v. State of W.B. 1989 Cri.L.J. 2070. In that case witness was sought to be recalled to make correction and correct his statement and Hon''ble Supreme Court held that section is not intended to permit witness to resile from his statement in the name of correction.

The facts of present case are totally different. In the instant case, deceased Murli Manohar alleged to have sustain injuries in the hands of the accused petitioner and he was immediately taken to hospital at Pokaran where the Tehsildar Pokaran recorded his statement as Executive Magistrate. Subsequently, Murli Manohar died and after investigation police laid challan against the accused petitioner. The copy of the statement of deceased recorded by the Tehsildar Pokaran was also annexed with the challan papers and supplied to the accused petitioner. Inadvertently name of the then Tehsildar Pokaran could not be mentioned in the list of witnesses. The petitioner knows right from the beginning that statement of deceased Murli Manohar was recorded by the then Tehsildar Pokaran and with this knowledge accused went on trial and, therefore, it cannot be said that by summoning Tehsildar as a prosecution witness, petitioner can said to be brought to surprise. In the instant case, the explanation offered by the prosecution not having examined the then Tehsildar Pokaran as prosecution witness before closer of prosecution evidence is that due to inadvertence his name could not be mentioned in the calender of witnesses filed along with charge sheet. Thus, after examining the prosecution witnesses as per calderder of list of witnesses submitted by it, the prosecution closed its evidence. It was only when case was finally argued, it revealed that due to inadvertance the above named material witness could not be examined and as such at that stage the then Tehsildar Pokaran was sought to be examined on behalf of the prosecution. From the facts narrated hereinabove, it is obvious that calling of witness the then Tehsildar Pokaran was neither malafide nor a design to fill up the lacuna in prosecution case.

In Mohan Lal Shamji Soni v. Union of India and Anr. 1991 (Suppl. 1) 271 their Lordships of Supreme Court has observed as under:

The very usage of the words such as ''any court'', ''at any stage'', or ''of any enquiry'', trial or other proceedings'', ''any person'' and ''any such person'' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.

Their Lordships elaborately discussed the words of Section 311 of Cr.P.C. while dealing the matter in hand and observed as under:

It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with holds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under Illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of the Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independant of the parties to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a court must discharge its statutory functions-whether discretionary or obligatory- according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done. In order to enable the court to find out the truth and render a just decision the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

Thus, it is clear that u/s 311, Cr.P.C., the criminal Court has ample powers at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness, or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined and if the criminal Court is of the opinion that the evidence of such person appears to be essential to the just decision of the case, the Court has ample power to summon such witness so long as court retains seisin of proceedings without qualifying limitation or prohibition, needless to say in any inquiry or trial comes to an end when the order or judgment is pronounced, until the court has power to use provisions of Section 311 of Cr.P.C.

Their Lordships further observed in Mohan Lal''s case (supra) as under:

The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judiciously and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. The jurisdiction of the court must be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and the requirements of justice command the examination of any person which would depend on the facts and circumstances of the each case.

In Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, it was observed as under:

Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertance, the Court should be megnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not count errors committed by the parties or to find out and declare who among the parties performed better.

The judgments relied on by the learned Counsel for the petitioner are distinguishable on facts and have no direct application to the facts of the present case.

This Court in State of Rajasthan v. Ishak Mohd. 1997(1) RCD 651 (Rajasthan) had occasioned to consider the provision of Section 311 of Cr.P.C. in similar facts and circumstances of the case. In that case, the name of prosecution witness Amar Chand was not mentioned in the list of witnesses due to inadvertence and on an application by the prosecution he was sought to be examined as prosecution witness. This Court allowed the prosecution''s application in the similar facts and circumstances of the case. The case in hand is also similar to that of Ishak Mohd.''s case (supra).

Thus, it is clear that Section 311 Cr.P.C. allows the court to invoke its inherent powers at any stage, so long as the Court retains seisin of the criminal proceedings without qualifying any limitation or prohibition. Needless to say that trial of any court reaches to its finality when the order or judgment is pronounced and until then Court has power to invoke the provisions of Section 311, Cr.P.C.

For the reasons stated above, in my considered opinion the order of learned Trial Court does not suffer from any illegality or perversity calling for any interference. The order of the Trial Court will secure the ends of justice.

In view of the aforesaid discussions, this Misc. Petition is devoid of any merit. Accordingly, it is hereby dismissed. However, I direct the Trial Court to afford the fair opportunity to the accused petitioner to cross-examine the witness sought to be examined by the prosecution.