Judgment:
ORDER
J.G. Chitre, J.
1. Shri S. M. Jain learned counsel for the applicants heard.
Shri Jain is making a prayer that the order which has been passed by 3rd Additional. Sessions Judge Mandsaur on 26-9-1996 be set aside as it is illegal. He submitted further that by summoning H. C. Rajaram for giving evidence in the said Sessions Trial, the Court is allowing the prosecution to fill up a lacuna. He further submitted that before passing of this order, the prosecution has already closed its case and there was no reason for calling this witness. The trial Court had no right to summon the witness suo motu. He made reference to the certified copy of the order sheet of the relevant dates in that S.T.
2. Certified copy of the order sheet shows that on 22-8-1996 the Additional P.P. Shri Dube had informed the Court that the prosecution was closing the evidence. The order sheet also shows that thereafter the Court fixed the case on 26-8-1996 for examination of the accused in view of the provisions of Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'). On 26-8-1996 an adjournment was sought by the defence as the accused was not present before the Court and thereafter the case was posted for further hearing on 29-8-19%. On that date the said case could not be taken up because the Presiding Judge was on leave.
3. On 30-8-1996, Court found that on 10-5-1994 deceased Narayan, son of Manaji had filed a report against the accused in Nahargarh Police Station which was registered at serial No. 156/94 by H. C. Rajaram. In view of that, the Court found that the said report was relevant and material for just decision of the said Sessions Trial and, therefore, the Court suo motu summoned the said H. C. Rajaram for the purpose of getting examined in context with the said report.
4. Shri Jain placed reliance on a judgment of this Court in the matter of Pritam v. State of M.P., 1994 (II) MPWN 351 Note No. 262 wherein S. B. of this Court held that the defence had no right to recall a witness who was examined in chief and cross-examined fully. Shri Jain also placed reliance on a Judgment of Supreme Court in the matter of Mir Mohd. Omar v. State of W. B., AIR 1989 SC 1785 to substantiate his arguments. It appears that it has been forgotten that these cases are dealing with 're-calling of a witness who has been examined-in-chief and cross-examined fully'. Here is the case in which a report was lodged by the deceased against the accused in Nahargarh police station on 10-5-1994 bearing serial No. 156/94 reduced it in writing by H. C. Rajaram and Court found that examination of the said head constable is material in just decision of the Sessions Trial and, therefore, the Court decided to summon and examine H. C. Rajaram suo motu.
5. Section 311 of the Criminal Procedure Code empowers the Court to examine any prosecution witness as a witness though not summoned at any stage of enquiry or trial or other proceeding, under the Code, if it appears to the Court that his evidence is essential for just decision of the case. Here it is pertinent to note that the said H. C. was neither examined in examination-in-chief nor cross-examined by the defence.
6. The prosecution agency may afford to be unmindful of the importance of examining a prosecution witness, but if the Court finds that the evidence of such a witness is material, essential for just decision of the case, the Court is certainly empowered to examine such a witness though not summoned by the prosecution. The prosecution may afford to close its evidence being unmindful of the importance of the evidence of a particular witness or witnesses but it does not mean that by such act on the part of the prosecution, the Court is prohibited from examining such a witness or witnesses if the Court finds that the evidence of such a witness or witnesses is essential for just decision of the case. After all, the Court has to give just decision in the case placed before it and tried by it, by considering the material collected during the investigation keeping in view the legal provisions. The Court has also to keep in mind the golden principle of innocence and it has also to see that no prejudice is caused to the defence of accused. After examination of such a witness or witnesses, the accused should be given opportunity to cross examine him/them. The Court is also entitled to put questions to such a witness or witnesses if the Court finds proper in the interest of justice.
7. As a result of the aforesaid discussion, the revision application fails and is dismissed without notice to other side.