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2003 DIGILAW 443 (GAU)

Kuladhar Kalita v. State of Assam

2003-09-18

AFTAB H.SAIKIA

body2003
ORDER A.H. Saikia, J. 1. None appears for the petitioner when the matter is taken up for hearing, despite the names of the learned counsel being shown in the related cause list, has been pending since 1995. Considering the importance of the issue involved in this revision petition, this Court has requested Mr. B.C. Das, learned counsel to assist the Court as Amicus Curiae. 2. In this criminal revision, the petitioner has challenged the order dated 23-6-1995 passed by the learned Judicial Magistrate, 1st Class, Hallari in CR. No. 552/97 under Section 304(A), I.P.C. 3. For better appreciation of the question raised in this revision, it is apt and necessary to refer the impugned order dated 23-6-1995 which may be extracted as under :-- "Accused present, judgment is deferred as I find that two materials witnesses are not examined. One is Nandi Barman and another some Deka Store Keeper of that time. Therefore, issue summon to them to appear before the Court as Court witness fixing 27-7-1995." From the perusal of the record it reveals that earlier to passing of this impugned order, there were other orders passed by the said Court and the reference of the same would be relevant for proper adjudication of the case in hand. On 3-6-1995 the learned Magistrate passed the following order :-- "Accused present. Heard arguments completely. Fixed 17-6-1995 for judgment." Thereafter on 17-6-1995, an another order was passed which runs as under : "J. M. is on leave. Accused is present. Judgment not delivered. Fixed 23-6-1995 for Judgment." 4. Challenging the order dated 23-6-1995, the petitioner has stated that the learned Magistrate acted illegally and without jurisdiction in issuing the summons to two persons named in the order itself as Court witnesses when the matter was already fixed for judgment. His case is that once the matter has been fixed for pronouncement of judgment, the Court has no jurisdiction to examine the persons by directing them to appear in witnesses which may go against the petitioner prejudicing his interest. 5. Referring to Sections 311 and 353, Cr.P.C. Mr. Das has forcefully argued that the Court has the power to summon, examine or re-examine any person before pronouncement of the judgment if the same is essential to arrive at the just decision of the case. 5. Referring to Sections 311 and 353, Cr.P.C. Mr. Das has forcefully argued that the Court has the power to summon, examine or re-examine any person before pronouncement of the judgment if the same is essential to arrive at the just decision of the case. According to him in the instant case the learned Magistrate exercised her power in accordance with law and there is no illegality in issuing summons to the persons as recorded in the impugned order dated 23-6-1995. 6. Both the Sections 311 and 353, Cr.P.C. may be referred as follows :-- "311. Power to summon material witness, or examine person present.-- 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 be essential to the just decision of the case." 353. Judgment.-- (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders :-- a) by delivering the whole of the judgment; or b) by reading out the whole of the judgment; or c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. A combined reading of both the Sections goes to show that the Court is empowered to issue summons to material witness or to examine person present or to re-examine any person already examined before culmination of the trial, i.e. before pronouncement of the judgment by the Court after termination of the trial. 7. The question raised herein is whether a witness can be summoned to appear as Court witness when the judgment has been reserved for delivery. The law in this regard has already been settled. 7. The question raised herein is whether a witness can be summoned to appear as Court witness when the judgment has been reserved for delivery. The law in this regard has already been settled. The Apex Court in Jamatraj Kewalji Govani v. State of Maharashtra, reported in ruled that an enquiry or trial comes to end when judgment is pronounced, but until the pronouncement of the judgment, the Court has the power to act under the provision of Section 311, Cr.P.C. Therefore, it was held that a fresh witness can be summoned and examined even when the evidences of both sides come to an end and the case was posted for hearing. In paragraphs 13 and 14 the Apex Court held as follows :-- "13. ............ Even in England where the rule in Dora Harris case (1927) KB 587 obtains, the powers of the Court have not bee held to be wrongly exercised, when fresh evidence has been let in for a Just decision. In Willian v. Sullivan (1922) 16 C A R 112 rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John Hekenne (1956) 40 C A R 65 it is a held that a Judge had complete discretion whether a witness should be recalled and that the Court of criminal appeal would not interfere unless it has made to appear that Injunction had been caused.............." 14. It would appear that in our criminal Jurisdiction, statutory law confers power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the Court exercises the power under the second part, the Inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right to thinking that the new evidence is needed by it for a just decision of the case. If the Court has acted without the requirements of a just decision, the action is open to criticism but if the Court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction." 8. If the Court has acted without the requirements of a just decision, the action is open to criticism but if the Court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction." 8. In another case of Mohanlal Shamji Soni v. Union of India the Apex Court reiterating the views taken in Jamatraj's case (supra), has categorically stated that the power to summon any person as witness can be examined at any stage for proceeding. In paragraph 18 the Apex Court observed as follows :-- "18. The next important question is whether Section 540 gives the Court carte blanche drawing no underlying principles in the exercise of the extraordinary power and whether the said Section is unguided, uncontrolled and uncannalised. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, 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, that power is circumscribed by the principle that underlines Section 540, namely evidence to be obtained should appear to the Court essential to a Just decision of the case by getting at the truth all lawful means. Therefore, it should be borne in mind that the aid of the Section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used Judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this Section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties." 9. Having regard to the above precedents and also upon hearing Mr. Having regard to the above precedents and also upon hearing Mr. B.C. Das, learned counsel as Amicus Curiae, this Court is of the considered view that the Court is empowered to summon or examine any witness at any stage before pronouncement of the judgment if it appears to the Court to be essential to a just decision of the case by getting at the truth by all lawful means. That being so, it can be safely held that no illegality or infirmity has been committed by the learned Magistrate in passing the impugned order. 10. Consequently, this revision petition fails and stands dismissed. 11. Before parting with the judgment, it behoves me to pen down here my sincere appreciation and commendation for the valuable assistance rendered by Mr. B.C. Das, learned Amicus Curiae Jri deciding the case.