Raju Kumar Dey vs Parul Sarkar and Another

A.H. Saikia, J.—Heard. Mr. H.R.A. Choudhury, learned counsel for the petitioner. None appears for the respondents despite notice.

This criminal revision has been carried from the order dated 7.11.1994 passed by the learned Asstt. District Judge, Karimganj in Sessions Case No. 31/94 by which the petition filed by the prosecution u/s 311 Cr.PC praying to allow it to examine three persons as witnesses, so named by one Nirmal Chakraborty, while depositing as PW 9, was rejected.

Mr. Choudhury, learned counsel appearing for the petitioner has contended that by rejecting the prayer for examination of the persons namely, Sadhan Dutta, Subhash Sen and Sukumar Ghosh being the materials witnesses in the case, the court committed an error of law inasmuch as the refusal has greatly prejudiced the interest of the petitioner. His contention is that the examination of those witnesses was essential to arrive at the just decision of the case in hand but the Learned Judge misinterpreted the provision of Section 311 Cr.PC and thereby acted illegally refusing to examine the witnesses as prayed for by the petitioner.

For the sake of convenience Section 311 Cr.PC may be quoted as under :

"311. Power to summon material witness, or examine person present -Any court may, at any stage of any inquiry, trial or other proceeding under this Code, 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 the Court shall summon and examine or recall and re-examine any such person, if his evidence appeals to it to be essential to the just decision of the case."

A plain reading of this provision of law would, show that this Section consists of two parts. In the first part, the word used is "may" and in the second part the word used is "shall". Therefore, it can be safely said that first part gives discretionary power to the court and other imposes an obligation on it making it purely mandatory. In the first part, it is provided that the court may, at any stage of an enquiry, trial or other proceeding, (a) summon any person as a witness or (b) examine any person present in the court although not examined or (c) recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part, being the mandatory one, compels the court to take any of the above mentioned steps if the new evidence appears to it essential to the just decision of the case. Though the discretion given by the first part to the court is very wide, the second part binds the court to examine fresh evidence only on the condition so prescribed that this evidence must be essential to the just decision of the case. Therefore, it is seen that while exercising a discretionary power under this Section in doing criminal justice, the court has to be vigilant, alert and active to see that whether any new evidence is necessary to arrive at a just decision. Once it is satisfied the special witnesses are necessary for examination, it is the obligation on the part of the court that the evidence be examined in the interest of justice.

Reliance has been placed on the following decisions of the Apex Court by Mr. Choudhury wherein the Apex Court had the occasion to deal with the power of court u/s 311 Cr.PC.

In Jamatraj Kewalji Govani Vs. The State of Maharashtra, in paragraph 6, the Hon''ble Top Court held that Section 540 Cr.PC (new Section 311 Cr.PC, 1973) conferred a wide discretion on the court to act as the exigencies of justice require by which power had been given to summon the material witness or to examine the person present in the court or to re-call a witness already examined.

In another decision reported in Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, , the Apex Court in para 7 observed that since the function of the criminal court was administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better, if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

The Supreme Court in Shailendra Kumar Vs. State of Bihar and Others, again re-iterated that Section 311 Cr.PC empowered the court to exercise this power of summoning and examining the witness, it court is satisfied that examination of such witness would be essential to the just decision of the court meaning thereby, the court can exercise its power of discretion, if and only when the court is satisfied that there is necessity of examination of such witness to effect proper adjudication.

On careful perusal of the impugned order it appears that the learned Judge observed that evidence of those three person was not necessary and refusal of their examination would not affect any way in arriving at a just decision. The court observed "........... I have gone through the evidence of PW 9 Nirmal Chakraborty. It is found from evidence of Nirmal Chakraborty that while he was going to attend an invitation of a marriage, he saw Swapan Deycoming out of the house of Amar Sen in injured condition. Thereafter, he Sadhan Dutta, Subhash Sen and Sukumar Ghosh, took the injured to railway hospital. Then he came to know from the mouth of the public that accused Parul Sarkar assaulted Swapan. It transpires from his evidence that the above three persons accompanied him upto the hospital. There is nothing in his evidence that the above three persons told him that they saw the occurrence committed by accused Parul Sarkar except taking the injured to the hospital. So their evidence will, in no way, help the prosecution case....."

Having gone through the above finding, this court is of the considered view that no prejudice was caused to the petitioner by the refusal of examination of those witnesses. In view of the Apex Court rulings as already stated, the law is settled that the court, in exercising the power u/s 311 Cr.PC, may or may not summon or examine any witnesse but if the court is satisfied that the examination of the witnesses are essential to arrive at the just decision, the court has to do so.

In view of what has been discussed above, this court is of the view that no illegality and/or irregularity was committed in passing the impugned order. Accordingly the order dated 7.11.1994 does not warrant any interference.

In the result, this criminal revision fails. Send down the records to the lower court immediately.

Since the matter is pending since 1994 the court shall make an endeavour to dispose of the entire matter as expeditiously as possible.