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1997 DIGILAW 1303 (RAJ)

Gopal Krishan v. State of Rajasthan

1997-11-05

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 2.6.97 passed by the learned Additional Sessions Judge, Nohar in Sessions Case No. 15/96 State vs. Gopal Krishan & Ors. By the aforesaid order the learned AdditionalSessions Judge allowed the application moved by the prosecution under Section 311 Cr.P.C., requesting that Dr. Subhash Rajput P.W.1 should be recalled for re-examination in view of the report received from the Forensic Science Laboratory, after the analysis of the viscera sent for examination. (3). The facts of the case may be briefly summarised as below:– (4). In Sessions case No. 15/96 State vs. Gopal Krishan & Ors. the accused persons are facing trial for the offences punishable under Section 304-B and 498 A I.P.C. The post mortem examination of the victim was conducted by a Medical Board consisting of Dr. Subhash Rajput and Dr. R.S. Kedar. The visceras of the decea-sed were sent to the F.S.L. for chemical examination. After the framing of the charges against the accused persons, the prosecution produced its witnesses. Dr. Subhash Rajput P.W.1 was examined on 19th December, 96. On the date of his examination, the report of the F.S.L. was not available. Dr. Subhash Rajput P.W.1 gave evidence to the effect that in his opinion the deceased (Smt. Rachna) had diedon account of poisoning and the visceras were sent for the confirmation of the medical opinion. In cross-examination, Dr. Subhash Rajput stated that he cannot tell what kind of poison had been administered to the deceased. Above facts are revealed by a photo stat copy of the statement of Dr. Subhash Rajput, who was examined on 19th December, 96. (5). The learned Additional Sessions Judge allowed the application filed by the prosecution under Section 311 Cr.P.C. in view of the above facts so that Dr. Subhash Rajput P.W.1 may be examined regarding the report of the F.S.L. The learned Additional Sessions Judge has in his order observed that recalling Dr. Subhash Rajput P.W.1 is necessary for the just decision of the case. In other words,the learned Additional Sessions Judge has opined that the recall and re-examination of Dr. Subhash Rajput P.W. 1 is covered by the latter part of Section 311 Cr.P.C. (6). Subhash Rajput P.W.1 is necessary for the just decision of the case. In other words,the learned Additional Sessions Judge has opined that the recall and re-examination of Dr. Subhash Rajput P.W. 1 is covered by the latter part of Section 311 Cr.P.C. (6). The learned counsel for the petitioner has submitted that the impugned order dated 2nd June, 97 passed by the learned Additional Sessions Judge, Nohar is not in accordance with law, because the statement of Dr. Subhash Rajput P.W.1does not show any ambiguity or necessity of a clarification at this stage. It is also submitted by him that the report of the F.S.L. had been received at an early stage and the report is positive for the presence of Malathion insecticide and therefore, there is no necessity of recalling Dr. Subhash Rajput P.W.1. It is also submitted by him that the prosecution cannot be allowed to fill up the lacuna and therefore, theexercise of power under Section 311 by the learned Additional Sessions Judge amounts to abuse of the process of the court and his order deserves to be quashed and set-aside. (7). The learned Public Prosecutor has supported the order passed by the learned Additional Sessions Judge on the ground that since the learned AdditionalSessions Judge was of the opinion that recalling Dr. Subhash Rajput P.W.1 was necessary for just decision of the case, the Additional Sessions Judge was not only empowered, he was under a legal duty to recall Dr. Subhash Rajput P.W.1 and therefore, the impugned order does not suffer from any illegality or irregularity or impropriety. (8). I have carefully considered the arguments advanced by both the parties and taking into consideration the facts of the case. Section 311 Cr.P.C. is in two parts. The first part of Section 311 Cr.P.C. empowers the criminal court to order at any stage of any inquiry, trial or any other proceeding to summon any person as a witness or examine any person in attendance, though not summoned as a witnessor recall or re-examine any person already examined. Latter part imposes a duty on the criminal court to summon and examine or recall and re-examine any such person (as referred in first part), if his evidence appears to be essential to the just decision of the case. Latter part imposes a duty on the criminal court to summon and examine or recall and re-examine any such person (as referred in first part), if his evidence appears to be essential to the just decision of the case. The first part of Section 311 confers the powers on the criminal courts and since the power is judicial, the exercise of the power is shown to be discretionary by the use of the expression ``any court may. The latter part of the section imposes a duty on the criminal court to exercise the power given by the first part of Section 311, if the examination or re-examination of any witness is in the opinion of the Court necessary for the just decision of the case. It is thus obvious that whenever in the opinion of the Court conducting inquiry, trial or any other proceeding under the Code, it appears to be necessary for the just decision of the case that a witness should be examined or re-examined, the Court should exercise the power conferred by the first part. The reasons for conferring the powers under Section 311 Cr.P.C. are not difficult to be found out. The just decision of the casegenerally depends on proper ascertainment of facts, proper ascertainment of law and proper application of law to the facts ascertained by the Court. Ascertainment of facts is therefore, necessary for the just decision of the case unless the facts are admitted or their proof can be legally dispensed with. Ascertainment of facts requires the production of relevant and admissible evidence before the Court con-ducting inquiry, trial or other proceeding. It is true that the responsibility of the parties in the matter of producing evidence before a criminal court is governed by rules as to burden of proof and therefore, the party on whom to burden to prove a disputed fact lies is required to produce the evidence regarding that fact. But, it does not mean that the Court while conducting inquiry, trial or other proceedingsis a passive spectator of the proceedings that take place in the Court. It is the bounden duty of the Court to see that the facts are ascertained correctly. But, it does not mean that the Court while conducting inquiry, trial or other proceedingsis a passive spectator of the proceedings that take place in the Court. It is the bounden duty of the Court to see that the facts are ascertained correctly. In order to enable the criminal Courts to discharge the judicial function property, it was necessary to confer upon the Courts the powers which have been conferred by the first part of Section 311 Cr.P.C. It may be pointed out that Section 165 of the Eviden-ce Act empowers every Judge to ask any question he pleases in any form at any time of any witness or of the parties about any fact relevant or irrelevant and to order the production of any document or thing, for the purpose of discovering or obtaining the proper proof of relevant facts. Section 165 of the Evidence Act further makes it clear that neither the parties nor their agents shall be entitled to make anyobjection to any such question or order, nor without the leave of the Court to cross-examine any witness upon any answer given in reply to any question put to the witness or the party by the Judge. The proviso contained in Section 165 of the Evidence Act further provides that the judgment must be based upon facts declared by this Act (Evidence Act) to be relevant and duly proved. (9). In view of Section 165 of the Evidence Act, it must be said that the Judge conducting inquiry, investigation or other proceeding is empowered to put any question to any party or to any witness, at any stage, in any form, at any time according to his discretion, if in the opinion of the Judge, it is necessary to discover or obtain proper proof of relevant facts and neither the parties to the case nor theiragents have any right to make any objection to any question put by the Judge to a witness or to production of any document. In my humble opinion the provisions of Section 311 Cr.P.C. should be read with the provisions of Section 165 of the Evidence Act and if in the opinion of the Judge, it is necessary to examine or re-examine any witness (including a party) for the just decision of the case, it mustbe held that the case is covered by the latter part of Section 311 Cr.P.C. and the Judge has unfettered power to examine or re- examine any party or witness or direct the production of any party or witness. In the instant case, the learned Additional Sessions Judge has observed in his order that recalling Dr. Subhash Rajput P.W.1 was necessary for the just decision of the case. I am therefore, of theopinion that the present case is covered by the latter part of Section 311 Cr.P.C. read with Section 165 of the Evidence Act and the impugned order cannot be questiond on the ground that it is illegal, irregular, or improper. It would be out of place to mention here that the power under Section 165 of the Evidence Act as well as Section 311 Cr.P.C. is the power of the Court and it is distinct from the rights of the parties to the case. In other words, it is the Judge/Magistrate holding inquiry, trial or other proceedings under the Code, who can examine or re- examine any witness under Section 311 Cr.P.C. and 165 of the Evidence Act. The parties to the case do not appear to be entitled to exercise the powers which are conferred by the Statute on the Judges (including the Magistrate). The only exception appears to be the right of the accused to cross-examine a witness, who is examined by the Court under Section 311 Cr.P.C. read with Section 165 of the Evidence Act, if in the opinion of the Court it is necessary to give any opportunity to the accused to cross-examine the witness. (10). For the reasons mentioned above, this petition has no force. It deserves to be dismissed and is hereby dismissed. The learned Additional Sessions Judge may put such questions to Dr. Subhash Rajput P.W.1 as he deems fit for the just decision of the case nd if he considers it necessary to give an opportunity to the accused to further cross-examine, he would be within his rights to permit the accu-sed to make further cross-examination of Dr. The learned Additional Sessions Judge may put such questions to Dr. Subhash Rajput P.W.1 as he deems fit for the just decision of the case nd if he considers it necessary to give an opportunity to the accused to further cross-examine, he would be within his rights to permit the accu-sed to make further cross-examination of Dr. Subhash Rajput P.W.1. The petition deserves to be dismissed and is hereby dismissed.