Madhya Pradesh High Court
Heeralal @ Nimma S/O Ram Kumar Golhari vs State Of Madhya Pradesh on 17 March, 1997
Equivalent citations: 1997(1)MPLJ550
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. In this Revision the applicant calls in question the legal validity of the order passed by the learned Second Additional Sessions Judge, Seoni in Sessions Trial No. 64/92, whereby he has refused to entertain an application filed under section 311 of Criminal Procedure Code for summoning of certain witnesses.
2. The fact situation as has been uncurtained from the petition is that the accused/applicant is facing the trial for an offence under section 302 of Indian Penal Code. It has been put forth that the prosecution had mentioned Dr. Rajnish Choubey, Dr. Satish Kadam Raje @ Rajesh s/o Rampyare Kumasariya and Pannalal s/o Parsadi Choudhary as chargesheet witnesses but they were not examined by the prosecution. It has also been stated that one R. N. Singh, Asst. Sub-Inspector posted at the relevant time at Ghansour, was also an essential witness for unfolding the truth. Application was filed for examining these witnesses by issuing appropriate direction under section 311 of Criminal Procedure Code. The said petition was orally resisted by the prosecution as the learned counsel for the prosecution did not intend to file any written objection.
3. The learned trial Judge observed as the prosecution has closed its case and does not intend to examine these witnesses and as all main witnesses have been examined, it was not necessary to summon the witnesses as prayed for by the accused. Recording such reasons the Court below rejected the application. The same is the cause of grievance of the present revisionist.
4. Mr. S. L. Kochar, learned counsel for the petitioner has contended that the material witnesses have been deliberately suppressed by the prosecution and the same substantially keeps the truth shrouded in mystery. He has also canvassed that the approach of the Court below in rejecting the application is sensitively susceptible as he has not kept in view the mandate of the provision of section 311 of the Code of Criminal Procedure.
Mr. P. D. Gupta, learned Government Advocate, in support of the impugned order has submitted that the defence cannot compel the prosecution to examine certain witnesses if the prosecution does not so desire, and if by such non-examination, any benefit in law is available to the accused, he can take advantage of the same.
5. To appreciate the rival contentions raised at the bar, I have perused the impugned order. Needless to emphasize, it is absolutely a cryptic order. The reasons given by the Court below relate only to the closure of the prosecution case. There is no discussion with regard to any other aspect. The prosecution had also not filed any objection indicating its stand. The validity of this order is to be tested keeping the language employed under section 311 of the Code. It is essential to refer to the provision under section 311 of Criminal Procedure Code, which reads 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 witness, or examine any person in attendance, though not summoned as a witness, or re-call or 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 to be essential to the just decision of the case."
From the aforesaid provision it is crystal clear that the Court has been empowered to summon any person as a witness at any stage of any inquiry, trial or other proceeding. The power is not confined to any particular class of person. The wide power has been conferred to further the ends of justice. The Court keeps its mind open to perceive the desirability of any evidence being brought on record for just decision of the case. It is a cardinal principle in the law of evidence that the best available evidence should be brought before the Court. If it appears to the Court that evidence of a particular witness is essential for the just decision of the case, statute casts the mandate on the Court to summon him. Where the evidence of any person which in the opinion of the Court is essential for a just decision of the case the Court has authority to exercise its discretionary power in any of the three ways, mentioned in the first part of the section. It is settled in law, if the conditions under this provision are satisfied the Court can call a witness not only on the motion of either the prosecution or the defence, but it can do so on its own motion. The Apex Court in the case Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346, while dealing with the jurisdiction of the Court under section 311 of the Code has laid down as follows :-
"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. It is the duty of the Court not only to do justice but also to ensure that justice is being done. In order to enable a 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 inquiry, trial or other proceeding 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 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. The very usage of the words such as 'any Court' 'at any stage', or '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 in the fresh evidence to be obtained is essential to the just decision of the case."
6. From the aforesaid decision it is luminously clear that a duty is cast on the Court to scrutinise the situation to arrive at the conclusion whether summoning of a witness for any of the purpose is essential for just decision of the case. The Court is required to be guided by sense of fair play and the command of justice. The primary duty of the Court is to arrive at the truth by all lawful means. In the famous trial of Warren Hastings, Edmund Burke observed thus :-
"A Judge is not placed in the high situation merely as a passive instrument of the parties. He has duty of his own, independent of them and that duty is to investigate truth."
In this regard I may refer to the observation of Lumpkin, J. in the case of Epps v. State which reads thus :
"Counsel seek only for their clients' success, but the Judge must watch that justice triumphs."
Judged on the anvil of the aforesaid principles it is clear as day that the learned trial Judge has not dealt with the situation in proper perspective and has casually observed that the defence could summon those persons as its witnesses. There is no discussion with regard to the concept of essentialness of the evidence to arrive at the just decision or for revelation of the truth. As the order does not meet the requisite legal parameters the same becomes indefensible and is liable to be set aside and accordingly, I do so. The learned trial Judge would do well to consider the matter afresh keeping in view the law governing the field and the observations made above. The entire exercise shall be completed within a period of six weeks from today.
7. The Revision application is accordingly, allowed.
C. C. as per rules.