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2016 DIGILAW 227 (UTT)

Jaswant Singh @ Jassa v. State of Uttarakhand

2016-05-18

SUDHANSHU DHULIA

body2016
JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. In the ongoing trial, an order has been passed by the Trial Judge exercising its power under Section 311 of Cr.P.C. vide order dated 05.01.2016 by which the weapon used in the alleged murder was directed to be produced in the court. This order is presently being challenged by the accused/applicant. 2. The submission of the learned counsel for the applicant – Mr. G.S. Sandhu is that although under Section 311 of Cr.P.C. the learned Magistrate has wide powers and such powers can be exercised at any stage, but it can be done either on an application of the prosecution or by the defence or even suo moto by the court itself, but in the present case, this application for production of the alleged weapon has been moved by one of the witnesses, on which cognizance has been taken and the order for production of the weapon has been ordered. This, according to the applicant, is in violation of Section 311 of Cr.P.C. 3. Learned counsel for the State, on the other hand, argues that the powers given under Section 311 of Cr.P.C. are wide powers and since admittedly these powers can also be exercised suo moto by the court itself, whether on the application of the prosecution or defence or of any other person is actually immaterial, as the powers ultimately have to be exercised by the court itself, as it is ultimately the court’s order. There is no anomaly in the impugned order, passed by the trial court. 4. The argument of the learned counsel for the State appears to be correct. The Presiding Judge not only has powers under Section 311 of Cr.P.C. but such powers under Section 311 of Cr.P.C. have always to be read along with the powers of the trial court under Section 165 of the Evidence Act, which reads as under:- “165. 4. The argument of the learned counsel for the State appears to be correct. The Presiding Judge not only has powers under Section 311 of Cr.P.C. but such powers under Section 311 of Cr.P.C. have always to be read along with the powers of the trial court under Section 165 of the Evidence Act, which reads as under:- “165. Judge’s power to put questions or order production - 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: Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 5. The powers under Section 165 of the Evidence Act read with Section 311 of Cr.P.C. are wide powers given to a Presiding Judge in order to reach a just decision in a case, as the ultimate goal of the trial court is to reach to the truth of the matter. If in the wisdom of the court, the production of the weapon is necessary for just decision of the case, the orders to that effect must be passed. The opening sentence of Section 165 of the Evidence Act declares the purpose for the exercise of such wide powers, which is “in order to discover or to obtain proper proof of relevant facts.” 6. The opening sentence of Section 165 of the Evidence Act declares the purpose for the exercise of such wide powers, which is “in order to discover or to obtain proper proof of relevant facts.” 6. Moreover, Section 311 of Cr.P.C. gives the powers to the court to pass such an order “at any stage”. Therefore, it is immaterial on whose application it has been passed or at what stage these powers have been exercised by the Trial Judge. What is relevant is that it should be for the discovery of a relevant fact and to reach a just decision in a case. Nothing has been shown before this Court which may even remotely suggests that the impugned order is for any other purpose. 7. In view of the above, the contention of the learned counsel for the applicant has no force and the application under Section 482 Cr.P.C. stands dismissed.