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Rajasthan High Court · body

1997 DIGILAW 1062 (RAJ)

Cheeku Singh v. State of Rajasthan

1997-09-02

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor. (2). This petition under Section 482 Cr.P.C. is directed against the order dated 5th February, 97 passed by the learned Special Judge, S.C./S.T. (Prevention of Atrocities) Cases, Merta in Sessions Case No. 75/92 State vs. Cheeku Singh @ Shatrudaman Singh. By the aforesaid order dated 5th February, 97 the learned Special Judge directed that Herak Mohammed, in whose presence the dying decla-ration of Shri Jiya Ram was recorded, be summoned for examination under Section 311 Cr.P.C. It was observed by the learned Special Judge that it was in the interest of justice to summon Shri Herak Mohammed. (3). The learned counsel for the petitioner has submitted that in this case the prosecution had closed its evidence. The accused petitioner had been examinedunder Section 311 Cr.P.C. and the case was listed for final arguments and it was not necessary in the interest of justice to call the witness Herak Mohammed and the impugned order passed by the learned Special Judge is not justified in law, because, it is tentamounting to filling of the lacunas left by the prosecution. (4). The learned Public Prosecutor has opposed this petition. (5). In view of Section 465 Cr.P.C., even if it is held that the lower court has committed any error, omission or irregularity, the orders passed by the lower court cannot be interfered with unless in the opinion of the Court a failure of justice has in fact been occasioned. It is, therefore, necessary to consider whether in the present case any failure of justice has been occasioned by passing of the impugnedorder by the learned Special Judge under Section 311 Cr.P.C. (6). Section 311 of the Criminal Procedure Code reads :- ``311. Power to summon material witness, or examine person present.–Any Court may, at any stage of any inquiry, trial or other pro- ceeding under this Code, summon any person as a witness, or exa- mine any person in attendance, though not summoned as a witness, or recall 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 it to be essential to the just decision of the case. (7). This section is in two parts. (7). This section is in two parts. Under the first part any Court may at any stage of inquiry, trial or other proceedings 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. (8). Under the second part, the Court is duty bound to summon and examineor recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. The necessity of finding out a criteria for properly exercising the discretion vested in first part of Section 311 arises from the fact that the power conferred by the first part is discretionary and the discretion must be exercised along well established judicial principles. Under the second part of Sec-tion 311, there is no discretion to summon or not to summon a witness. If the Court comes to the conclusion that it is necessary for the just decision of the case, the Court is duty bound to summon and examine or recall or re-examine any person, if his evidence appears to be essential to the just decision of the case. It is necessary to keep in mind the distinction between the two parts of Section 311 Cr.P.C. (9). In Balwant Singh vs. The State of Rajasthan (1), a learned Single Judge of this Court in para no.14 of the judgment pointed out that the provisions of Section 311 Cr.P.C. are in two parts; in first part, it is permissible for the Court to exercise the discretion, but in second part, it is obligatory upon it to exercise the power. In that case in para no.43 of the judgment the learned Single Judge clearly pointed out that recalling of the three witnesses in the given circumstances of the case could not be said to be essential to the just decision of the case, and therefore, the order passed by the lower court was set-aside. (10). In Keval Gupta vs. The State of Himachal Pradesh (2), a learned Single Judge of the Himachal Pradesh High Court considered the provisions of Section 311 Cr.P.C.. At page 401 of the report, the learned Single Judge observed :– ``This section is divisible in two parts. (10). In Keval Gupta vs. The State of Himachal Pradesh (2), a learned Single Judge of the Himachal Pradesh High Court considered the provisions of Section 311 Cr.P.C.. At page 401 of the report, the learned Single Judge observed :– ``This section is divisible in two parts. In the first part, discretion is given to the court and enables it at any stage of an inquiry, trial or other proceedings under the Code (a) to summon anyone as a witness, or (b) to examine any person present in court, or (c) to recall or re-examine any person whose evidence has already been recor- ded; on the other hand, the second part appears to be mandatory and requires the Court to take any of the steps if the new evidence appears to be essential to the just decision of the case. The object of the provision, as a whole is to do justice not only from the point of view of the accused and the prosecution, but also from the point of view of orderly society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether this evidence the court thinks in the facts and circumstances of the particular case before it. If this results in what is sometimes thought to be the filling of lacunae, as contended by the learned counsel for the petitioner, that is admissible subsiduary factor and cannot be taken into consideration. (14). I concur with the observations made by the learned Single Judge. (15). In view of the above reasons, if the direction to summon any witness has been given under the first part of Section 311 Cr.P.C., such direction may be scru- tinised with a view to find out whether the direction has in fact occasioned a failure of justice. (14). I concur with the observations made by the learned Single Judge. (15). In view of the above reasons, if the direction to summon any witness has been given under the first part of Section 311 Cr.P.C., such direction may be scru- tinised with a view to find out whether the direction has in fact occasioned a failure of justice. On the other hand if the direction to summon any person or to recall any person is given in second part of Section 311 Cr.P.C. and the facts and circumstan-ces of the case reasonably justify the conclusion that the evidence of the person, who was directed to be summoned or recalled is essential for the just decision of the case then the direction cannot be termed as irregular or unjust. (16). So far as the facts of this case are concerned, it appears that the statement of Jiya Ram was recorded on 8th May, 90 by Bhawardan, A.S.I. in presenceof the Medical Officer Incharge and one Herak Mohammed. Ex.P/26 contains the thumb impression of Jiya Ram. The prosecution right from the very beginning knew well that this document was an important document for the purpose of supporting the prosecution case and in fact the prosecution tendered this document in evidence and produced the witnesses. For the reasons best known to theprosecution, the name of Herak Mohammed was not mentioned in the list of witnesses and having regard to the facts and circumstances of the case, it is difficult to say that examination of Herak Mohammed is essential for the just decision of the case. For the reasons best known to theprosecution, the name of Herak Mohammed was not mentioned in the list of witnesses and having regard to the facts and circumstances of the case, it is difficult to say that examination of Herak Mohammed is essential for the just decision of the case. The learned Public Prosecutor has not pointed out any special circumstance, which may justify the conclusion that examination of Herak Mohammed isessential to the just decision of the case within the meaning of second part of Section 311 Cr.P.C. I, therefore, come to the conclusion that the impugned direction given by the learned Special Judge is not covered by second part of Section 311 and at best it is a direction given under the first part of Section 311 Cr.P.C. and in the facts and circumstances of the case, it was unnecessary and unjustified and is likelyto occasion the failure of justice, because the prosecution has already closed its evidence, the statements of the accused has already been recorded un der Section 313 Cr.P.C. and the case is fixed for final arguments and if the proceedings are permitted to be reopened, the very object of taking a session trial in one session would be defeated. (17). For the reasons mentioned above, the petition deserves to be allowed and is hereby allowed. The impugned order directing the summoning of Herak Mohammed is hereby quashed and set-aside. The learned Special Judge is directed to hear the final arguments and then decide the case according to law as soon as may be possible.