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Madhya Pradesh High Court · body

2000 DIGILAW 1144 (MP)

NARAIN SINGH v. STATE OF M. P.

2000-10-17

FAIZAN UDDIN

body2000
FAIZAN UDDIN, J. ( 1 ) HEARD. THIS petition under S. 482, Cr. P. C. has been filed by the applicant being aggrieved by the impugned order dated 28-8-2000 whereby the application moved under S. 311, Cr. P. C. by the prosecution has been allowed. ( 2 ) THE application was filed on the ground that the statement of Naib Tehsildar namely Sanjeev Saxena, who had got the identification parade conducted with respect to accused and prepared the identification memo, could not be recorded and as such the said memo could not be exhibited. The prayer was therefore made for calling this witness. The prayer was further made for recalling the witnesses Kamta Prasad and Krishna Bai, who participated in the identification parade and identified the accused, for the evidence. ( 3 ) THE learned trial Court after considering the entire material on record and the facts and circumstances in great detail has found that in the ends of justice, the summoning of witness for recording evidence is just and proper. ( 4 ) AN objection was raised from the side of the applicant/accused that the aforesaid identification memo was not earlier made available in the case. It was contended that the documents had been subsequently filed. ( 5 ) THE learned trial Court has considered all these aspects of the matter and found that in the charge-sheet as well as in the list of documents there was mentioned, and as such the findings to that effect have been recorded in para 10 of the order that all these documents were available on the record and the objection has no basis. The finding recorded is well merited, and this Court does not find any infirmity therein. ( 6 ) THE next question for consideration is as to whether the examination of the witness is necessary for the adjudication of the matter? ( 7 ) THE learned trial Court being conscious of the fact and the provisions of S. 311, Cr. P. C. on two parts of which first is discretionary and the latter is mandatory, in para 15 of the order arrived at a conclusion that the examination of witness appears to be essential to the just decision of the case. ( 7 ) THE learned trial Court being conscious of the fact and the provisions of S. 311, Cr. P. C. on two parts of which first is discretionary and the latter is mandatory, in para 15 of the order arrived at a conclusion that the examination of witness appears to be essential to the just decision of the case. The Court-below has further found that though the witnesses of identification parade, namely Kamta Prasad and Krishna Bai have already been examined, but in view of the fact that the Executive Magistrate/naib Tehsildar Sanjeev Saxena is being called for the evidence, these witnesses be also re-summoned for further examination and cross-examination. ( 8 ) THE Apex Court in the case of Jamatraj Kewalji Govani v. State of Maharashtra, reported in AIR 1968 SC 178 : (1968 Cri LJ 231), has considered the provisions of S. 540, Cr. P. C. corresponding to S. 311 which contemplates that any Court by exercising its discretionary authority at any stage of enquiry, 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 and re-examine any person already examined, who are expected to be able to throw light upon the matter in dispute. Paras 6 and 10 of the judgment are relevant and quoted below :-6. "the section gives a power to the Court to summon a material witness or to examine a person present in Court or to re-call a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice require. Paras 6 and 10 of the judgment are relevant and quoted below :-6. "the section gives a power to the Court to summon a material witness or to examine a person present in Court or to re-call a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in S. 165 of the Indian Evidence Act which provides :"section 165 : The Judge may, in order to discover or to obtain proper proof of relevant facts, 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 may order the production of any document or thing; and neither, the parties nor their agents shall be entitled to make any objection 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 such question : these two sections between them confer jurisdiction on the Judge to act in aid of justice. "10. "section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part which is permissive, the Court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in Court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are however two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C. J. in words which are oft-quoted :"there is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex-emproviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case there seems to me no reason why that matter which so arose ex-improviso may not be answered by contrary evidence on the part of Crown. "there is however the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory, J. in Rex v. D. Harris, (1927) 2 KB 587 :"the cases of Reg v. Chapman, (1838) 8 C and P 558 and Reg v. Holden, (1838) 8 C and P 606 establish the proposition that the presiding Judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary inthe interest of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right. "however, the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal C. J. in (1840) 4 St. Tr. "however, the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal C. J. in (1840) 4 St. Tr. (NS) 85 even in those cases where a witness is called by the Judge after the case for the defence is closed, and states "that the practice should be limited to a case where the matter arises ex emproviso, which no human ingenuity can forsee, on the part of a prisoner, otherwise injustice would ensure" and cites the case of Reg v. Haynes, (1859) 1 F and F 666 where Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora Harris's case (1927) 2 KB 587 five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross-examine him but did not ask Dora to enter the box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power. " ( 9 ) IN view of the decision of the Apex Court in the case of Jamatraj (1968 Cri LJ 231) (supra), it is crystal clear that the provisions of S. 311, Cr. P. C. confer wide discretion on the Court to act as the exigencies of the justice require. A perusal of the impugned order shows that the learned trial Court after considering the entire scenario of the matter, formed an absolute opinion that it is in the interest of justice to summon/re-call the witnesses for the just decision of the case and the steps regarding that must be taken. There is no infirmity warranting interference. ( 10 ) HAVING considered the matter, in the opinion of this Court, the court-below committed no illegality to reach at a conclusion, while passing the impugned order. There is no infirmity warranting interference. ( 10 ) HAVING considered the matter, in the opinion of this Court, the court-below committed no illegality to reach at a conclusion, while passing the impugned order. No case has been made out for exercising the jurisdiction envisaged under S. 482, Cr. P. C. ( 11 ) THE petition fails and is dismissed. Petition dismissed. .