Full Judgment
M.R. Calla, J.
1. This Cr. Misc. Petition under Section 482 Cr.P.C. has been filed against the order dated 9th October, 1991 passed by the Additional Sessions Judge, Karauli, Camp Hindaun City in Sessions Case No. 69/86.
2. By this order dated 9th October, 1991, the Court has directed the Incharge of the Police Station, Hindaun City to ascertain the correct address of Ghanshyam Duta, the then Dy. Superintendent of Police who was the Investigating Officer in this case and to produce him before the Court and for the assistance of S.H.O., Hindaun City, the Court has also considered it proper to issue a bailable warrant for a sum of Rs. 5,000/- in the name of Shri Ghanshyam Dutta and the matter was posted for evidence of Shri Ghanshyam Dutta on 18th of November, 1991 with further direction to the learned Additional Public-Prosecutor to take necessary steps in this case, so that the evidence of this witness may be recorded.
3. Shri Chaturvedi has submitted that in this case, the process for summoning the witnesses was closed earlier on 13th March, 1991 and thereafter the version of the accused i.e. the statements were recorded under Section 313 Cr.P.C.
4. The matter was also heard on 22nd March, 1991 and the case was posted for judgment on 26th March, 1991. He has submitted that an application was filed on 26th March, 1991 by the learned Addl. P. P. for summoning 3 witnesses and on this application, the present order dated 9th October, 1991 was passed. The argument of Shri Chaturvedi is that this order dated 9th October, 1991 is not in conformity with Section 311 of the Cr.P.C. and passing of this order at this stage on the application moved by the Additional Public Prosecutor amounts to the abuse of the process of the Court. Therefore, he seeks to invoke the powers of this Court under Section 482 Cr.P.C. Shri Chaturvedi has cited before me 1987 Raj Cri C 345 Kanhaiya Lal v. State, wherein this Court has considered the scope of Section 311 Cr.P.C. and it was observed by the Court that it was very unfortunate that when the case was completely argued and the matter was posted for judgment an application like the one was entertained. Shri Chaturvedi has also invited my attention to the observations made in this judgment to the effect that it is another thing that the Court suo motu could entertain, if the Court finds it essential in the interest of justice. But such circumvention in not in keeping with law and spirit of Section 311 Cr.P.C.
5. I have gone through this order passed in Kanhaiya Lal v. State (Supra) and find that this case has been decided on the principle that it should not be merely for filling up of the lacuna or to meet such situation of which defence can make use. In this case, certain documents were not got exhibited and that was considered as lacuna on the part of the Public Prosecutor and the Court has observed that the Public Prosecutor should have been vigilant earlier. Shri Chaturvedi has also cited before me 1988 WLN (UC) 367 Raj Karan v. Jeewan Khan. It was a case in which the witnesses were cited by the complainant as his own witnesses and then they have been given up by him, the Court held on the facts of the case that such witnesses cannot be allowed to be examined as Court witnesses. This case has no bearing on the facts of the present case, not on the question of law as it is not a case of examining any witness as Court witness which had been earlier given up by the prosecution. Nor it is a case in which it can be said that any lacunae or gaps left by the prosecution are being sought to be filled up now. Shri Chaturvedi has also cited before me AIR 1991 SC 1346 : (1991 Cri LJ 1521). Mohanlal Shamji Soni v. Union of India. He relies upon the following passage from this Judgment of the apex Court (Para 18):
Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
I have also considered the submissions made by Mr. Chaturvedi that Section 311 Cr.P.C. runs into two parts. The first part relates to the passing of the orders on application moved by the prosecution and the other part deals with the situation when such powers could be exercised suo moto by the Court. Section 311 Cr.P.C. is reproduced as under:
311. 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 re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
6. So far as the facts of this case are concerned, it cannot be said that the law cited by Shri Chaturvedi has any direct application. In the facts of the case at hand the Investigation Officer has to be examined and he was a very important and material witness, in as much as he was the witness to prove the recovery of blood-stained Bush-shirt. The prosecution had necer given up this witness. It is of Course, true that this witness could not be served despite several opportunities and it is also apparent that the bailable warrants which were sent for service on this police officer to appear as a witness, the report came that his address was not available. In such circumstances, the Court rejected the request of the Additional Public Prosecutor to summon the other two witnesses namely Buniyad AH and Brijmohan, but allowed the request of the Additional Public Prosecutor in respect of Investigation Officer Ghanshyam Dutta. It has to be agreed on all hands and it is a fact which is undeniable that Ghanshyam Dutta was the Investigating Officer and was a material witness for proving recoveries and further that this witness was never given up by the prosecution. Merely because his correct address and whereabouts were not known, his bailable warrants for his appearance as witness in the Court could not be served, could hardly enable the accused to take advantage of that situation and to say that the Court should not have passed the order to send bailable warrants for this witness to record his evidence. 1988 WLN (UC) 367 Rajkaran v. Jeewan Khan (supra) and the AIR 1991 SC 1346 : (1991 Cri LJ 1521), Mohanlal Shamji Soni v. Union of India (supra) on which reliance has been placeds by Shri Chaturvedi are the cases which are wholly distinguishable on facts as well as on the question of law in as much as the case at hand is not a case in which any lacuna left by the prosecution is sought to be filled up now. So far as the arguments of Shri Chaturvedi that such order can be passed only suo motu in accordance with the later part of Section 311 Cr.P.C. but could not be passed on an application of the Addl. P.P., it maybe at once observed that this submission has no merit in view of the language contained in Section 311 Cr.P.C. itself. Because at the very outset of Section 311 Cr.P.C. i.e. in the earlier part of Section 311 itself, it has been provided that the Court may pass such order at any stage of the trial and it may summon any person as a witness even if it had not summoned earlier, may recall any person already examined. In the case at the hand it has been categorically mentioned by the Additional Sections Judge, Karauli that the transfers of the police officers are usual and the Court was of the opinion that for a just and fair decision of the case, it was necessary to examine the Investigating Officer and it was further observed that without examining the investigation officer, it was not possible to render complete justice in this case. In my opinion, merely because the arguments had been heard in this case and the case at one stage had been posted for judgment is not a ground to limit the scope of passing of the order under Section 311 Cr.P.C. as the Court can pass such orders at any stage. Therefore, it is immaterial if the order has been passed on the application filed by the Addl. Public Prosecutor and the Court has not passed the order suo moto.
7. In my considered opinion, the impugned order dated 9th October, 1991 is fully in confirmity with the scope of Section 311 Cr.P.C., it does not suffer from any infirmity whatsoever and there is no question of abuse of process of the Court rather the passing of this order was necessary to advance the objects on natural justice and fair trial.
This petition under Section 482 Cr.P.C. has no merit and the same is hereby dismissed.