Mohd. Bux S/o Noor Khan v. State of Rajasthan — 1997 DIGILAW 321 (RAJ)

Honble KHAN, J. – Heard. In the present case the prosecution after having examined all its 11 witnesses at the trial of the petitioners for offences u/Ss. 147, 148, 341 & 323 IPC, moved an application u/S. 311 Cr.P.C. requesting the Court to summon one more witness namely, Anwar, as an eye-witness. The petitioners opposed the effort of the prosecution to fill up the lacunae, as is alleged by the lear- ned counsel for the the petitioners, in their case. By his impugned order dated 20.1.1997 the learned Magistrate allowed the application of the prosecutrix and directed that Anwar be summoned as a witness in the case. (2). The learned counsel for the petitioners submitted that Anwar witness though named in the FIR was not examined u/S. 161 Cr.P.C. in the course of investi- gation and, therefore, should not have been summoned as a witness in the case. The learned Public Prosecutor, however, submitted that Sec. 311 Cr.P.C. confers ample jurisdiction upon the Magistrate to summon any person in attendance as a witness though he had not earlier been summoned and examined. The learned Public Prosecutor further pointed out that if the learned Magistrate considers the evidence of a particular person essential to the just decision of the case, he is duty bound to summon such witness. (3). Section 311 meets two eventualities. It empowers the Court, at any stage of inquiry, trial or other proceedings to summon other person as witness or examine any person in attendance though not summoned as a witness, or recall or re-examine any person, already examined. The further part of this Section says that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. This part of the provision is mandatory as for a just decision of the case material evidence shall have to be received. The object underlying this Section is that the doors of Courts for material evidence, assisting the Court to come a just decision of a case, should not be shut on the parties. But at the same time in the application of this provision care is required to be taken that the power vested in the Court is not utilised to the dis-advantage of a party only to fill up lacunae in the case of the prosecution. But at the same time in the application of this provision care is required to be taken that the power vested in the Court is not utilised to the dis-advantage of a party only to fill up lacunae in the case of the prosecution. If the facts and circumstances of the case indicate that effort to summon a person, who was not examined earlier, was being made only to fill up the lacunae in the prosecution case or to prolong the life of the litigation, the Court should not exercise its discretion in favour of that party. (4). In the instant case the nature of accusation against the petitioners was that of simple hurt and wrongful restraint. The offence was alleged to have been committed on 3.5.1995. After a trial of the petitioners after more than a year and after examining of the witnesses at the trial when the case was fixed for the examination of the accused u/S. 313 Cr.P.C., the prosecution woke up and came with the application that one more witness, who was though mentioned as eye-witness in the FIR not examined u/S. 161 Cr.P.C. in the course of investigation, should be summoned as an additional witness. The Magistrate had, if it was essential to the just decision of the case, ample power u/S. 311 Cr.P.C. to have summoned such witness also. But it is not agitated before me that testimony of 11 witnesses examined at the trial of the petitioner was not supporting the prosecution case. Further it was not told to me as to why Anwar was not examined u/S. 161 Cr.P.C. In case where a witness is though named in the FIR yet not examined u/S. 161 Cr.P.C. great care is to be taken to throw a proposition that such a witness may also be liberally examined by prosecution at the trial of the accused. Care shall have to be taken to see that such a proposition does not open the doors upon prosecution to come to the Court and say that they want to produce such witnesses. Care shall have to be taken to see that such a proposition does not open the doors upon prosecution to come to the Court and say that they want to produce such witnesses. It should not be lost sight of that the purpose of the examination of the witnesses in the course of investigation has to be judged with reference to the requirement of law contained in Sec. 173 r/w Sec. 207/208 where it is obligatory on the part of the Court to furnish the copies of the statement of all such witnesses as the prosecution intend to examine at the trial of the accused. Liberally permitting such persons, as were not examined by the Investigating Agency in the course of investigation, to be examined at the trial of the accused would, in my opinion cause a serious injury to the valuable right of the accused u/S. 173 r/w Sec. 207/208 IPC. (5). After having considered the facts and circumstances of the case and having heard the learned counsel for the parties I am of the opinion that the learned Magistrate did not exercise the jurisdiction vested in him judicially and correctly. The order under consideration seems to perpetuate injustice in this case. The same is required to be set aside in order to prevent the abuse of the process of the Court. (6). In view of the above the order under challenge is set aside and the petition allowed.