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2011 DIGILAW 2579 (RAJ)

Bhagwana Ram v. State of Rajasthan

2011-11-24

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—This criminal revision petition has been filed under section 397 Cr.P.C. read with section 401 Cr.P.C. against the order dated 12.11.2010 passed by Addl. Sessions Judge Fast Track No.1 Beawar in Sessions Case No. 48 of 2008 under section 302 IPC, whereby the application of the State under section 311 Cr.P.C. was allowed at the stage and on the date of pronouncement of judgment. 2. Brief facts of the case are that on 15.7.2008 Vinod Kumar lodged first information report before the SHO Police Station Beawar Sadar, District Ajmer for the offence under section 302 IPC. The accused was arrested on same day. Charge sheet was filed in the trial court and charge under section 302 IPC was framed. The prosecution witnesses PW.l to PW.14 were examined by the prosecution and further the prosecution produced documents Ex.P/l to Ex.P/42. In defence one witness DW.1 was examined on 20.6.2009 and thereafter final arguments were heard of both sides and the case was fixed for pronouncement of judgment on 7.9.2010 but due to some reasons the judgment could not be pronounced on that day and the next date for pronouncement of the judgment was fixed as 18.9.2010 and on this date the prosecution moved an application under Section 311 Cr.P.C. for recalling the Investigating Officer, for which the reply was filed and arguments were heard and the application was accepted on 12.11.2010. Against this order of the trial court, the present revision petition has been filed by the petitioner for quashing the order dated 12.11.2010 permitting the prosecution to produce the Investigating officer. 3. In the revision petition it has been contended by the learned counsel for the petitioner that the provisions of section 311 Cr.P.C. clearly specified that this section can only be invoked during the trial. He has further contended that when the case is posted for pronouncement of judgment no such application can be entertained by the trial court and the trial court has not considered the provisions of section 311 Cr.P.C. He has further drawn the attention of this court on the judgment of this court in Vinod Kumar Singh vs. State of Rajasthan 2009 (2) Cr.L.R. (Raj.) 978). 4. Mr. Peeyush Kumar, Public Prosecutor appearing on behalf of the State has seriously opposed the arguments advanced by the learned counsel for the accused petitioner. 4. Mr. Peeyush Kumar, Public Prosecutor appearing on behalf of the State has seriously opposed the arguments advanced by the learned counsel for the accused petitioner. The learned Public Prosecutor has submitted that the order passed by the trial court is in accordance with law. He has further contended that the prosecution has right to file application under section 311 Cr.P.C. at any stage of the trial. He has further contended that the calling of the witness was not to fill up lacunae of the prosecution. 5. I have heard the learned counsel for the parties. 6. Before proceeding further it would be necessary to have a look at the provisions of section 311 Cr.P.C. and the same reads as under : "311. The 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case". 7. According to the provisions of section 311 Cr.P.C., the summoning of the witness is in two parts. Under the first part, any court may, at any stage of inquiry, trial or other proceedings under the Code, summon any person in attendance, though not summoned as a witness or recall and re-examine any person already examined. Under the second part, the court is duty bound to summon and examine or recall and re-examine any such person if his evidence appears to be essential to just decision of the case. The powers conferred by the first part of Section 311 Cr.P.C. is discretionary and such discretion has to be exercised in accordance to the established principles of law. However, under the second part of the provision of Section 311, there is no discretion to summon or not to summon a witness. If the court comes to conclusion that it is necessary for the just decision of the case, the court is duty bound to summon and examine or recall or re-examine any person, if his evidence appears to be essential for just decision of the case. If the court comes to conclusion that it is necessary for the just decision of the case, the court is duty bound to summon and examine or recall or re-examine any person, if his evidence appears to be essential for just decision of the case. This view of mine is supported by the judgment of the High Court in the case of Balwant Singh vs. State of Rajasthan, 1986 Cr.L.J. 1374 = 1986 RLW 112 and Vinod Kumar Singh vs. State of Rajasthan 2009(2) Cr.L.R. (Raj.) 978 (S.B. Criminal Misc. Petition No. 989 of 1999 decided on 27.11.2008. Further, the provision under Section 311 Cr.P.C. can be exercised "at any stage of any enquiry, trial or other proceedings". The words 'enquiry', 'trial' or 'other proceedings' are mentioned in the alternative. In the instant matter, it was a trial case. When the provision mentions alternatively 'other proceedings' as distinct from 'enquiry' and 'trial', the other proceedings shall be different than trial. Undisputedly, in the present case, there was a trial and final argument had been heard on 29.09.1999. Thereafter, the case was posted for judgment on 05.10.1999. 8. Section 353(1) of the Code of Criminal Procedure provides about the judgment, which reads thus: "353(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 pleader,- (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." 9. In other words, the stage of a judgment comes on termination of the trial. A judgment can come immediately after termination of the trial or on the subsequent date which may be given for the same and the case is so posted. Therefore, when case is posted for judgment, the trial stands terminated. 10. In other words, the stage of a judgment comes on termination of the trial. A judgment can come immediately after termination of the trial or on the subsequent date which may be given for the same and the case is so posted. Therefore, when case is posted for judgment, the trial stands terminated. 10. In the instant case, the case was posted for pronouncement of judgment on 7.9.2010 but due to some reasons the judgment could not be pronounced on that day and the next date for pronouncement of the judgment was fixed on 18.9.2010 by the trial court below and this shows that the trial had been terminated on 7.9.2010 and further on 18.9.20109, in view of the provisions under Section 353 Cr.P.C. When the provision under Section 311 Cr.P.C. are to be exercised at any stage of enquiry, trial or other proceedings and, as mentioned above, the word 'other proceedings' is in the alternative to the trial. Therefore, in the present case, being one of a trial and was posted for judgment, stage of trial had come to an end. In other words, the trial in the present case was already over when the trial court below had posted the matter for judgment. Consequently, the powers under section 311 of the Code could not have been exercised by the trial court once the trial stood terminated and the case was posted for judgment. The said provisions cannot be invoked by the trial court on the day when the matter is posted for judgment. Therefore, the order impugned in the present case is not sustainable under law on this count alone in view of the judgments of Balwant Singh vs. State of Rajasthan, 1986 Cr.L.J. 1374 and Vinod Kumar Singh vs. State of Rajasthan 2009(2) Cr.L.R. (Raj.) 978 (S.B. Criminal Misc. Petition No. 989 of 1999 decided on 27.11.2008. 11. For the aforesaid reasons, this criminal revision petition succeeds. Consequently, this criminal revision petition is allowed and the order dated 12.11.2010 passed by the learned Additional Sessions Judge Fast track No. 1, Beawar in Sessions Case No. 48/2008 is quashed and set aside. The record of the trial court be sent forthwith.