Criminal Revision No. 337 of 1991

6th April, 1993.

Petitioner Counsel: M/ s. B. L. A. Swamy, S. V. B. Das, M. K. Barik and A. K. Rath, for s
Respondent Counsel: Mr. B.P. Mohapatra, Addl. Govt. Adv., .

Cases Cited:
1992 Cri LJ 3048 (Orissa),(1991) 4 OCR 452 (Rel. on) [Para 3]
1991 Cri LJ 1521,AIR 1991 SC 1346 (Rel. on) [Para 3]
1965 (1) Cri LJ 226,AIR 1965 SC 202 (Rel. on) [Para 4]

JUDGMENT

:The order passed by learned Judicial Magistrate First Class, Bhubaneswar (in short, the 'JMFC) directing issuance of notice to certain persons to appear as witnesses is the subject-matter of assail in this revision application.

2. Petitioners are accused persons in GA Case No. 2043 of 1989. After evidence of prosecution and defence was recorded; the matter was posted for judgment. At that stage learned JMFC felt that for just decision of the case, it was necessary to examine two persons namely, Bana Senapati and Rabindra Kumar Das as witnesses. She felt that these two persons are material witnesses, and their evidence would be vital for just decision of the case. She noticed that summons sent earlier to the said two persons could not be served because Bana Senapati, a lady had during pendency of the case had left her parental home after marriage. So far as other witness Rabindra Kumar Das is concerned, summons came back unserved without any report. In this background, learned JMFC felt that it was imperative to issue summons to two witnesses to appear and depose. Mr. B. L. M. Swamy for petitioners urges that though power under S. 311 of the Code of Criminal Procedure, 1973 (in short, the 'Code') is very wide, yet the same cannot be utilised to fill up any lacuna in the prosecution case. There should be positive finding that evidence of persons to whom sumons are issued is relevant and vital for just decision and at the same time it would not cause prejudice to the accused persons. Learned counsel for State however, submits that learned JMFC having come to a definite conclusion that evidence of the two persons is vital and accused would get opportunity for rebuttal, interference is uncalled for.

3. Section 311 of the Code confers a wide power of summoning witnesses. Where evidence of any person is essential to the just decision of the case, it is obligatory on the part of the Court to summon and examine or recall or re-examine him. While considering a case under S. 540 of the Code of Criminal Procedure, 1898 (in short, the'Old Code') the apex Court held that it is the cardinal rule in the law of evidence that best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. But at the same time, it is the duty of the Court not only to do justice but also to assure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutory provisions of S. 540 of the Old Code (corresponding to S.311 of the new Code) have been enacted whereunder 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 or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute, because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of

facts, the ends of justice would be defeated. The very usage of the words such as 'any Court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this Section is expressed in the widest possible terms and the discretion of the Court is not limited in any way. However, the very width required a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistent with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforesaid two steps if fresh evidence is to be obtained. See Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346 : (1991 Cri LJ 1521). These aspects were highlighted by me in Mukunda Dev Baral v. Sanjib Baral (1991) 4 OCR 452 : (1992 Cri LJ 3048).

4. The Court can take steps enumerated in Section 311 even after prosecution and defence have closed their evidence (see Jawatraj Kewalji Govani v. State of Maharashtra, AIR 1943 SC 173 (sic). It is clear that requirement of just decision of the case does not limit it to action for the interest of accused persons. Action may equally benefit prosecution. Section 311 contains two parts. The first part gives a discretionary power to the Court and the second part is mandatory. Where the evidence of any person appears to the Court to be essential to the just decision of the case, the Court is bound to act in any of the three ways mentioned under the first part i.e. summon a new witness, examine a person present or recall a witness and re-examine him. If the conditions of S. 311 are satisfied, the Court can call a witness not only on the application of either party, but on its own motion. See Masalti v. The State of Uttar Pradesh, AIR 1965 SC 202: (1965(1) Cri LJ 226). Learned JMFC has indicated the circumstances in which attendance of the two persons could not be procured earlier, and the lapses of prosecution is not being careful in procuring their attendance. She has concluded that for a just decision, presence of two persons as witnesses was necessary, and that accused shall not be prejudiced because they shall get opportunity to cross-examine the witnesses. That being the conclusion, I do not think it is a fit case where revisional power is to be exercised.

5. Criminal Revision fails and is dismissed. Send back the I.C.R. immediately.

Revision Dismissed