Suresh and Anr vs State of Rajasthan

R.S. Chauhan, J.—The Petitioners are aggrieved by the order dated 12.01.2011, passed by Additional Sessions Judge (Fast Track) Tonk, whereby the learned Judge, u/s 311 Cr.P.C., has summoned the Investigating Officer, and directed to summon call-details of Banshi Lal, and a person of Air-Tel company Ltd. to prove the call- details. These two persons are called as court witness.

Learned Counsel for the Petitioner has contended that the Court does not have power to do so, and to pass suo-moto order. For, according to him the evidence of prosecution and defence has been closed, and the matter was listed for final arguments.

Heard learned Counsel for the parties and perused the material available on record.

The very function of the court is to ensure that justice is done to the parties; in criminal case, justice is done to the society at large. It is, indeed, trite to state that the Judicial Officers are not required to act as mute witness during the course of trial. In fact, the law expects the Judicial Officer to take a pro-active role, and to ensure that accused persons are tried properly, in case, the prosecution succeeds in establishing its case. u/s 311 Cr.P.C., the trial court has power to summon a witness suo-moto, and to summon any other witness as a court witness.

A bare perusal of the impugned order dated 12.01.11, clearly reveals that the learned trial court has passed a reasoned order, for exercising its power to summon the Investigating Officer, and the other two witnesses as court witness. According to the learned trial court, Banshi Lal and his wife were suddenly attacked at the dead of the night, and allegedly the accused had taken Banshi Lal''s shirt along with the mobile. Although the Investigating Agency, had submitted call details of the mobile, but the same were never marked as exhibit by the prosecution. Moreover, the said mobile was recovered at the instance of the accused. In order to complete the chain of circumstances, with regard to recovery of mobile, with regard to use of mobile by accused, obviously, it was imperative that call details should be exhibited, and the concerned person should be summoned to prove the call details. Since certain questions are still left to be answered by the Investigating Officer, therefore, he has to be re- called. In fact, this Court commends the learned trial court for having exercised the powers conferred by the law in order to do justice to the Petitioners, to the complainant, and to the society at large. This Court does not find any illegality of perversity in the impugned order.

The misc. petition, being devoid of merits, stands dismissed.