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2006 DIGILAW 982 (RAJ)

Kailash v. State of Rajasthan

2006-03-27

R.S.CHAUHAN

body2006
Judgment R.S. Chauhan, J.-The petitioners are challenging the order dated 17.02.2003 passed by Additional Sessions Judge (Fast Track), Jaipur District, Jaipur, whereby he has rejected the application filed by the accused petitioners under Section 311 of the CrPC, (henceforth to be referred to as the Code for short) and under Section 165 of the Indian Evidence Act (Henceforth to be referred to as the Evidence Act) 2. The brief facts of the case are that on 04.06.1996 the complainant Raju Lal Sharma lodged a FIR at Police Station, Bassi, District Jaipur against the present accused petitioners and others for offences under Sections 147, 148, 149, 302, 341, 323 and 337, IPC. After a through investigation on 03.09.1996, the police submitted a charge-sheet against the present accused petitioners and others, but kept the investigation pending against two co-accused persons namely Jagdish and Raju. During the course of investigation an application was moved before the trial Court praying that the investigation should be handed over to the CID (CB). After investigating the CID (CB) submitted its report before the Court. The present accused petitioners moved an application under Section 91 of the Code wherein they requested that a copy of the report of CID (CB) should be given to them. The said application was allowed and the accused petitioners were given a copy of the said report. During the course of investigation although the CID (CB) had recorded the statement of many witnesses, but the prosecution did not array those persons as witnesses during the course of the trial. Therefore, the accused petitioners moved an application under Section 311 of the Code praying that these persons should be called as witnesses on behalf of the prosecution. However, vide order dated 17.02.2003, the said application was dismissed. Hence, this petition before us. 3. Mr. G.C. Chatterjee, the learned Counsel for the petitioners, has argued that out of the same incident cross-cases were registered. Allegedly a murder was committed. However, in this case those who were witnesses to the said murder have been made accused by the police and those who were actually the accused persons have been made the witnesses to the alleged murder. Since, the statement recorded by the CID (CB) reveals the true picture of the case because these witnesses would reveal the truth, the prosecution is a shurking away from presenting these person as prosecution witnesses. Since, the statement recorded by the CID (CB) reveals the true picture of the case because these witnesses would reveal the truth, the prosecution is a shurking away from presenting these person as prosecution witnesses. But in order to do complete justice, in order to discover the truth, it is imperative that these persons be called into the witness box and be examined. According to the learned Counsel without examining the complexity of the case, without trying to do complete justice, the learned trial Court has rejected the application in a mechanical manner. .4. On the other hand, Mr. Aurn Sharma, the learned P.P. for the State, has argued that in case the prosecution decides not to examine a witness as a prosecution witness, it cannot be compelled to examine him in such a capacity. Furthermore, in case such witnesses were to support the story of the defence, then the accused petitioners are free to examine such persons as defence witnesses when they are asked to enter into the evidence for the defence. Therefore, the said application is premature, is not maintainable, and has rightly been rejected by the learned trial Court. 5. We have heard the learned Counsels for the parties and have perused the impugned order. 6. Section 311 of the Code reads as under: -"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 such person if his evidence appears to it to be essential to the just decision of the case." 7. Phraseology of the provision clearly reveals that it is a vast power granted to the Courts for summoning a material witness to be examined or re-examined. However, a vast power has to be exercised sparingly. Of course, it is difficult to lay down the circumstances in which the power should be exercised. The power cannot be put into a straight jacket formula. The underlying guiding principles controlling the exercise of power is that the power should be exercised when it is essential for "the just decision of the case". Whether a material witness should be summoned, examined, recalled, and re-examined would naturally depend on the facts and circumstances of each case. The power cannot be put into a straight jacket formula. The underlying guiding principles controlling the exercise of power is that the power should be exercised when it is essential for "the just decision of the case". Whether a material witness should be summoned, examined, recalled, and re-examined would naturally depend on the facts and circumstances of each case. It is equally well settled that the prosecution is not required to examine each and every witness whose name appears in the witness list. The corrolary is that the prosecution cannot be compelled to examine a person as a prosecution witness in case the prosecution does not wish to do so. Furthermore, Section 233 of the Code bestows a right on the accused to enter on his defence and to adduce any evidence he may have in support thereof . Under Section 233 Sub-section (3) of the Code, the accused has a right to apply for the issuance of process for compelling the attendance of any witness. In the present case if the accused petitioners feel that the witnesses whose statements have been recorded by the CID (CB) would support their defence, they are certainly free to examine such witnesses as defence witnesses under Section 233 of the Code. Since, this right has not been abridged or eliminated by the rejection of their application under Section 311 of the Code, there is nothing illegal about the impugned order passed by the learned trial Court. 8. In the result we do not find any force in the present petition. The petition is, hereby dismissed.