Sohan Singh vs State of Punjab

S.S. Sudhalkar, J.—The petitioner is an accused facing trial in the court of Special Judge CBI, Punjab at Patiala in R.C. No. 17/1992. He has challenged in this petition the order passed by the learned Special Judge on 24-5-1996 by which the application of the prosecution for additional evidence was allowed. The prosecution has alleged in that application that sanction for the prosecution u/s 19 of the Prevention of Corruption Act was granted by the Competent Authority and the sanction order was filed along with the documents when the challan was presented but inadvertently the sanction order could not be mentioned in the list of documents and the name of sanctioning authority could not also be mentioned in the list of witnesses. It is also mentioned in the application that the concluding lines of the report submitted u/s 173 of Criminal Procedure Code (hereinafter referred to as Code) mentions that sanction to prosecute the accused was obtained and the same was attached to it. It is further mentioned in that application by the prosecution that because of the unknown reasons the sanction order could not be proved and the prosecution evidence was closed under mistake of facts, and, therefore, it had requested for proving the sanction order by summoning the sanctioning authority. The learned Special Judge allowed the application and as stated earlier this petition is by accused for challenging the same order. The learned advocate for the petitioner has argued that the prosecution cannot be allowed to fill up the gaps by virtue of the provisions of Section 311 of the Code and, therefore, the prosecution having closed his evidence cannot be allowed to reopen. The same as the same would amount to filling up . the gaps. The learned advocate for the petitioner relied upon the case Bhagwan Singh v. State of Punjab, as reported in 1988 (2) RCR 146. The learned Judge in that case held that when the report of the chemical analysis was produced by the prosecution at the stage of arguments, that the defence counsel pointed out that the report was not admissible as it was not singed by anyone. In these circumstances, it amounted to giving a long handle to the prosecution to patch up the infirmities in this case.

To appreciate the provisions of Section 311 of the Code, it would be proper to quote the said section. It is as under: -

"Power to summon material witness, or examine person present.:-any court may, at any; stage or any inquiry trial or other proceedings under this Code, summon any '' person as a witness or examine any person in attendance, though "not summoned witness, or recall and re-examine any person already examined; and the Court shall-summon and or re-examine any such -person if his evidence appears to be essential to the just decision of the case."

(Emphasis supplied)

The Supreme Court has in various cases dealt with this provision. In the case of State of Bihar Vs. Sitaram Sahu and Another, it is held that:--

"Section 540 confers on criminal courts very wide powers. It is no doubt for the court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the powerconferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case."

In the case of Darya Singh and Others Vs. State of Punjab, it has been held that if the persons who had witnessed an incident had been deliberately kept back, the Court may draw an inference against the prosecution and may in a proper case, regard the failure of the prosecution 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 exercise of its powers u/s 540.

It is further held that "the powers of the court u/s 540 can and ought to be exercised in the interests of justice whenever the Court feels that the interests of justice so require."

From this principle laid down by the Supreme Court in the above mentioned cases, it is seen that the powers of the court in granting the application for additional evidence are wide but they have to be utilised for just decision in the case. With the above principle, laid down by the Supreme Court, the. ruling in the case of Bhagwan Singh (supra) cannot come to the rescue of the petitioner.

Here in the present case, the sanction order was produced. It was mentioned in its report u/s 173 of the Code that a sanction was obtained and that it is lying on the file. When this is the position, the non-production of the sanction order or non-listing of the sanctioning authority as a witness is a lapse which should not damage the prosecution''s case and the court also could have, if it intended, ordered the evidence to be produced in the interest of justice suo motu. When this is the position, the order of the trial Court allowing the additional evidence on the request made by the prosecution cannot be said to be without jurisdiction or suffering from infirmity. On the contrary, by examining the witnesses, the defence also will get a chance to cross-examine him and if there are infirmites, the defence can point out the same to the Court, but by not allowing this application, it will be shutting the doors of justice to the prosecution.

In view of the above position, this petition deserves to be dismissed and hence it is dismissed.