STATE OF GUJARAT v. PATEL NARAN DEVJI — 1990 DIGILAW 143 (GUJ)

BHAIRAVIA, J. ( 1 ) ). This Criminal Revision Application has been preferred by the State against the order dated 8/07/1983 passed by the learned Additional sessions Judge, Morvi in Cri. Rev. Appli. No. 4 of 1983 setting aside the order of the learned Judicial Magistrate, F. C. , Morvi passed below application Ex. 4 in Criminal Case No. 534 of 1983. ( 2 ) ). A small but very important and interesting point for Courts consideration has been raised by the Public Prosecutor in this Criminal Revision Application filed on behalf of the State. The point is :"under Sec. 311 of the Cr. P. Code, would it be permissible for the magistrate to allow the Public Prosecutor to examine prosecution witnesses after closing of prosecution evidence and recording further statement of the accused under Sec. 313 of the Code of Criminal Procedure, And whether the power conferred upon the Magistrate under Sec. 311 of the cr. P. Code is mandatory or discretionary powers ?" ( 3 ) ). A few facts of the prosecution case are necessary to be stated herein. The respondent accused was chargesheeted for offences punishable under Secs. 408 and 409 of the I. P. Code on the accusation that the accused had committed breach of trust by misappropriating sum of Rs. 862-62 ps. during the course of his service as Secretary-cum-Mantri of Hadmatiya Village Panchayat, hadmatiya, District Rajkot. A chargesheet was issued and the accused was prosecuted for the aforesaid offences by the learned J. M. F. C. Morvi in Criminal case No. 534 of 1980. In the chargesheet, names of 10 prosecution witness have been mentioned as prosecution witnesses. Summons were issued to the prosecution witness by the Court but it transpires from the record that inspite of several adjournments sought by the Addl. P. P. , except complainant, none of prosecution witnesses cited in chargesheet had come forward to depose in support of the prosecution case. Lastly, application Exh. 47 was submitted on nov 5/11/1982 by Addl. P. P. for one more adjournment which came to be rejected by the learned J. M. F. C. and closed prosecution evidence thereafter. Further statement of the accused under Sec. 313, Cr. P. C. had been recorded on 11-11-1982. The arguments of learned Advocates were heard on 23-11-1982 and the case was adjourned to 8-12-1982 for pronouncement of judgment. P. P. for one more adjournment which came to be rejected by the learned J. M. F. C. and closed prosecution evidence thereafter. Further statement of the accused under Sec. 313, Cr. P. C. had been recorded on 11-11-1982. The arguments of learned Advocates were heard on 23-11-1982 and the case was adjourned to 8-12-1982 for pronouncement of judgment. On 8-12-1982, the learned Additional P. P. moved an application Ex. 49 to the court under Sec. 311, Cr. P. C. and requested the learned Magistrate to issue summons to the prosecution witnesses and to allow him to examine them in support of the prosecution case. The learned Advocate for the accused had opposed that application (Exh. 49 ). However, the learned Magistrate was pleased to issue summons to the prosecution witnesses by his order below Ex. 49 dated 8-12- 1982. The accused challenged said order in the Court of the Additional Sessions judge, Morvi in Criminal Revi. Appli. No. 4 of 1983. The learned Addl. Sessions judge has allowed Cri. Revi. Appli. of the accused and set aside the order of the learned Magistrate dated 8-12-1982 passed below application (Exh. 49) by his judgment and order dated 8-7-1983. The impugned order has been challenged by the State in this Cri. Revi. Application. ( 4 ) ). Mr. Dave, learned Addl. P. P. appearing on behalf of the State has vehemently submitted that the order of the learned Additional Sessions Judge is erroneous and illegal as he failed to appreciate true meaning and object of the provisions of Sec. 311 of Cr. P. C. Further, he has submitted that as the powers exercised by the learned Magistrate under Sec. 311 of Cr. P. C. is a discretionary powers, it is not open for the accused to challenge the same in revision Application. The learned Addl. P. P. has relied on some rulings of the Court which I will refer later on. They are : (i) 1980 Cri. LJ 858 (Aeltemesh Rein v. State of Maharashtra), (ii) AIR 1969 Mysore 24 (iii) 1972 0 Crlj 994 (State v. Ul Fatia) (iv) AIR 1964 Bombay 165 (Shreelal Kajaria v. State) (v) AIR 1979 SC 1558 (vi) AIR 1987 SC 98 (State of Assam v. Muhim Barkatak ). ( 5 ) ). The main question regarding the ambit of power exercised by the magistrate under Sec. 311 of the Cr. ( 5 ) ). The main question regarding the ambit of power exercised by the magistrate under Sec. 311 of the Cr. P. C. is to be considered first. Section 311 of the Cri. P. C. reads as under :"sec. 311. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person 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 appears to it to be essential to the just decision of the case. " ( 6 ) ). The power conferred upon the Magistrate under Sec. 311 of the Criminal procedure Code is no doubt vide powers. The Magistrate can issue summons and call or re-call any witness and examine as Court witness at any stage of inquiry or trial provided Magistrate feels it absolutely to do so for the purpose of arriving at a just decision. Otherwise, it would be difficult to come to true and correct final decision which might result in failure of justice or miscarriage of justice. It is for the Magistrate to exercise or not to exercise the power under sec. 311 of Cr. P. C.- "at any stage of inquiry or trial" means before termination of trial under Sec. 353 (1) of Cr. P. C. Expression "after termination of trial" means after entire evidence both on behalf of the prosecution and defence is recorded and arguments of the parties are heard and the case is adjourned for pronouncement of judgment. In other words, terminology of Sec. 311 of Cr. P. C. "at any stage of inquiry or trial" to be construed as before the pronouncement of judgment of the case, the Magistrate may call or recall witness and examine as a Court witness order Sec. 311, Cr. P. C. With a view to fill-up the missing link in the evidence of the prosecution and it would absolutely necessary or inevitable to record additional evidence which may help him in reaching true and just decision in the matter. ( 7 ) ). P. C. With a view to fill-up the missing link in the evidence of the prosecution and it would absolutely necessary or inevitable to record additional evidence which may help him in reaching true and just decision in the matter. ( 7 ) ). It has been observed by the Bombay High Court in the case of Shreelal v. State, AIR 1964 Bombay 165, as under :"the question, whether or not, after the entire evidence is over, the Court should permit further evidence to be led, will depend on the facts of each case. It cannot be laid down as a general rule that in no case can an additional witness be called by the Judge at the close of the trial after the case for the defence had been closed. The Judge has right to exercise caution in using his powers under Sec. 540. Before using his powers, the Judge has to take into account the circumstances and decide whether the course of examining witnesses after the entire case is closed would be so irregular that it may be injustice to the accused. The mere fact that evidence is directed to be taken after the entire case is over is not in itself in excess of the powers under Sec. 540. Section 540 is, in the widest possible terms and calls for no limitations, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised. In fact, there will be a failure of duty on the part of the Court in not calling witnesses when once it comes to the conclusions that the examination of witnesses is necessary for the just decision of the case. Whether or not the attention of the Court has been invited to the necessity of certain evidence by the prosecution or the defence is immaterial so long as the satisfaction is of the Court. The mere fact, therefore, that the prosecution did not make an application for examination of witnesses will not affect the powers which the Court has for examining those very witnesses in the interest of justice. " ( 8 ) ). The mere fact, therefore, that the prosecution did not make an application for examination of witnesses will not affect the powers which the Court has for examining those very witnesses in the interest of justice. " ( 8 ) ). A Division Bench of Allahabad High Court in the case of State v. Ul fatia, reported in 1972 0 Crlj 994 , it has been observed as under :"first part of Sec. 540 empowers a Court either to examine a witness or not to examine him and this discretion has to be judicially, exercised, but the second part of the section is mandatory and the Court trying an accused has to take recourse if it appear to it that it is essential to examine a witness in order to be able to do justice in the case. "further, it has been observed in Para 6 as under :"6. In this connection, the provisions of Sec. 540 of the Code of Criminal Procedure may be considered. Section 540 of the Code of Criminal Procedure lays down : "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 appears to it essential to the just decision of the case. The first part of the section obviously empowers a Court either to examine a witness or not to examine him and this discretion, no doubt, has to be judicially exercised, but the second part of the section is mandatory and the Court trying an accused has to take recourse to the second part of the section if it appeared to it that it was essential to do justice in the case. It has to be considered to my mind, as to whether the second part of Sec. 540 of the Code of criminal Procedure which is a mandatory provision is applicable to a case of the nature before this Court. In my view, when there is absolutely no evidence before the Court by no stretch of imagination it could be said that it would be essential for the Court to examine a witness in order to be able to do justice. In my view, when there is absolutely no evidence before the Court by no stretch of imagination it could be said that it would be essential for the Court to examine a witness in order to be able to do justice. When there is no evidence at all, there can be no difficulty in holding the accused not guilty and the charge not proved. Only when there is some evidence on record and the Court finds that it is essential to take into account some other evidence to be able to do justice, the second part of Sec. 540 of the Code of Criminal Procedure becomes applicable. " ( 9 ) ). The Magistrate should be satisfied before issuing summons under Sec. 311 or Criminal Procedure Code. That it is absolutely necessary to examine a Court witness for filling missing link in the prosecution evidence and otherwise would not be able to reach the true and correct decision. Further, he should be satisfied that the witness who is to be examined as a Court witness must be an independent and disinterred in prosecution case so long he is exercising discretionary power under Sec. 311 of the Criminal Procedure Code. Even accused has also right to move such application under Sec. 311 of Criminal Procedure Code and in the event of accused moving such application to the Court for calling witness as a court witness, the Magistrate may examine such witness as a Court witness but before that, discretionary power under Sec. 311 of Criminal Procedure Code is required to be exercised judicially and being dissatisfied with such order, it is for the aggrieved party to challenge the said order before the appropriate forum. ( 10 ) ). In the instant case, the learned Addl. P. P. has moved an application ex. 49 with a view to examine the prosecution witness whose names were cited in the chargesheet but their evidence could not be recorded as they did not remain present in spite of several adjournments. The Court had closed the evidence, recorded further statement of the accused under Sec. 313 of the Cr. P. C. and the arguments of the Advocates were also heard and the matter was adjourned to next date for pronouncement of the judgment, i. e. on 8-12-1982. The learned Addl. P. P. Moved application under Sec. 311 of the Cr. The Court had closed the evidence, recorded further statement of the accused under Sec. 313 of the Cr. P. C. and the arguments of the Advocates were also heard and the matter was adjourned to next date for pronouncement of the judgment, i. e. on 8-12-1982. The learned Addl. P. P. Moved application under Sec. 311 of the Cr. P. C. on the date of pronouncement of the judgment and the learned Magistrate issued summons to prosecution witnesses and permitted the Public Prosecutor to examine those witnesses as prosecution witnesses. As held above, power under Sec. 311, Cr. P. C. is discretionary power and should be exercised by the Magistrate for examining a witness as a Court witness and not as a prosecution witness or defence witness. There is no substance in the arguments advanced by the learned Additional P. P. and hence same are rejected. I am fully in agreement with the view taken by the learned Additional Sessions Judge and hence the judgment and order passed by the learned Additional Sessions Judge is hereby confirmed. There is no substance in the submission advanced by the learned Additional P. P. and consequently the present Criminal Revision Application requires to be dismissed. ( 11 ) ). Hence, Cri. Rev. Application is dismissed Judgment and Order dated 8/07/1983 passed by the learned Additional Sessions Judge, Morvi in criminal Revision Application No. 4 of 1983 is hereby confirmed. Rule discharged. Stay stands vacated. .