Karnataka High Court
T. Umesh Malli And Ors. vs State Of Karnataka on 20 August, 2001
Equivalent citations: ILR2002KAR1201, 2001(6)KARLJ292
Author: G. Patribasavan Goud
Bench: G. Patribasavan Goud
ORDER
The Court
1. Petitioners are facing prosecution before the learned Magistrate at C.C. No. 287 of 1992 for the offences under Sections 326 and 506 read with Section 34 of the IPC. The alleged incident took place in the year 1990 as the crime number would indicate, namely Crime No. 251 of 1990. 10 years after the incident and 8 years after the charge-sheet came to be filed, petitioners availed of the benefit of the decision of the Supreme Court in Raj Deo Sharma v State of Bihar, by an order of the learned Magistrate dated 20-5-2000. Thereafter, but before the case could be terminated, the prosecution came up with a request to summon certain witnesses under Section 311 of the Cr. P.C. The learned Magistrate has declined the said request on two grounds, one of which is that the request of the prosecution for invoking Section 311 of the Cr. P.C. is a belated one.
When the above said order of declining to invoke Section 311 of the Cr. P.C. was taken up in revision before the learned Sessions Judge, the learned Sessions Judge, by the impugned order, has set aside that order and has directed reconsideration of the application under Section 311 of the Cr. P.C.
2. By a misunderstanding of the time-limit referred to in paragraph 15 of the clarificatory order in Raj Deo Sharma's case, supra, the learned Magistrate has wrongly taken that invoking Section 311 has to be within a specified time. Paragraph 15 dealt with an altogether separate aspect. The observation of the Supreme Court in the clarificatory order, so far as invoking of Section 311 of the Cr. P.C. is concerned, is to be found in paragraph 9, which reads thus:
"9. We may observe that the power of the Court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the Seven-Judge Bench in Abdul Rehman Antulay v R.S. Nayak, nor in Kartar Singh v State of Punjab, such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment, it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case, it is the duty of the Court to summon and examine or recall and re-examine any such person".
Thus, for the purpose of taking a decision on the prosecution's request to invoke Section 311 of the Cr. P.C., there is no time-limit, and, as observed by the Supreme Court in paragraph 9 of the clarificatory judgment, it is the conclusion of the learned Magistrate as to whether the evidence of a witness sought to be summoned under Section 311 of the Cr. P.C. appears to be essential to the just decision of the case that is the criterion, and not at what point of time the said request for invoking Section 311 of the Cr. P.C. came from the prosecution. To this extent, the learned Sessions Judge is right in pointing out that the learned Magistrate has wrongly referred to paragraph 15 of the clarificatory order in Raj Deo Sharma's case, supra, to assume any time-limit for the prosecution to invoke Section 311 of the Cr. P.C.
3. The assumption of time-limit for invoking Section 311 of the Cr. P.C. was not the only ground on which the learned Magistrate had declined to permit the prosecution to summon certain witnesses.
4. At the end of paragraph 10 of the order of the learned Magistrate, the learned Magistrate also dealt with what would be the effect of examining the witnesses concerned, and did find that the evidence of the said witnesses would not be essential to the just decision of the case. That means that the application of the prosecution under Section 311 of the Cr. P.C. was considered by the learned Magistrate on merits, and, it was on merits also that the learned Magistrate did not find the proposed evidence essential to the just decision of the case. The learned Magistrate thus having already considered the application of the prosecution from a correct perspective under Section 311 of the Cr. P.C., the order of the learned Sessions Judge directing reconsideration of that aspect by the learned Magistrate has been inadvertently done by the learned Sessions Judge overlooking what the learned Magistrate has said at the end of paragraph 10. What the learned Sessions Judge now wants the learned Magistrate to do, the learned Magistrate has already done at the end of paragraph 10 of his order. There is therefore no necessity of directing the learned Magistrate to take a fresh look at the request of the prosecution under Section 311 of the Cr. P.C. As it is, the incident took place 11 years back and the petitioners have been facing prosecution for the last 9 years. It is therefore appropriate that the learned Magistrate should proceed to deal with the matter in pursuance of his decision dated 20-5-2000 in terms of the decision of the Supreme Court in Raj Deo Sharma's case, supra.
5. The revision is therefore allowed. Order of the learned Sessions Judge is set aside, and the matter is remitted to the learned Magistrate to proceed to dispose of the matter in accordance with law. Learned Magistrate is directed to dispose of the whole matter on merits within three months from today.