ORDER
Bhawani Singh, J.
1. Shri Kewal Gupta, petitioner, approaches this Court through this revision petition and urges to set aside the order of judicial Magistrate, Ist Class (2), Nurpur, in Criminal Case No. 92/2.87, decided on 27-9-1988, whereby the trial Judge allowed the application of the prosecution under Section 311 of the Code of Criminal Procedure.
2. The facts, in brief, are that the petitioner is being prosecuted for offences under Sections 342/384/506 of the Indian Penal Code. After the framing of the charge, the Court proceeded to record the prosecution evidence. On 18-6-1988, the trial Court recorded the statement of the complainant, Shri Rakesh Kumar (P.W. 1). While recording the statement of this witness, names of Shri Kailash Chand, s/o Shri Jagat Ram, Shri Sundri s/o Shri Jai Chand and Shri Satish s/o Shri Tek Chand were introduced and it was stated that these persons saw the occurrence. On this revelation, the prosecution moved an application under Section 311 of the Code of Criminal Procedure before the trial Court for allowing it to examine these persons as prosecution witnesses. This prayer was contested by the petitioner. However, after hearing the parties, the trial Judge allowed the prayer of the prosecution by the impugned order. The petitioner has a serious grievance against the same and assails it by this petition.
3. Shri Vijay Pandit, learned counsel appearing for the petitioner, contends that the names of these persons do not find mention in the list of witnesses appended with the charge-sheet submitted before the trial Court by the prosecution under Section 173 of the Code of Criminal Procedure. Further, in case they were important witnesses, more so eye witnesses to the occurrence, the Investigating Officer should have taken care to record their statements under Section 161 of the Code of Criminal Procedure. Therefore, the learned counsel urges that in view of the failure of the prosecution on both these counts, it is not legally permissible to bring them forward for the first time and examine as prosecution witnesses. In the alternative, even if they are considered to be necessary, the trial Court should have exercised this power after seeking corroboration of the statement of Rakesh Kumar (P.W. 1). Having failed to Act in this manner, it is contended that the trial Court acted in hot-haste in allowing this application which could otherwise be done, if so thought fit by the Court, at a later stage. It is also contended by the learned counsel for the petitioner that the power under Section 311 of the Code of Criminal Procedure is to be exercised to meet the ends of justice and not to enable the prosecution to fill up lacunae in its case and that something which cannot be done in view of prohibition under Sections 161 and 173 of the Code of Criminal Procedure, cannot be allowed to be done by exercise of this power under Section 311 of the Code of Criminal Procedure. However, the learned counsel agrees that the power is wide enough but alleges that the same can be exercised in the interest of justice.
4. Before proceeding to examine these submissions of the learned counsel for the petitioner, it is necessary to reproduce Section 311 of the Code of Criminal Procedure :
'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.'
5. This section is divisible in two parts. In the first part, discretion is given to the Court and enables it, at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also justice from the point of view of orderly society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether this evidence the Court thinks necessary in the facts and circumstances of the particular case before it. If this results in what is sometimes thought to be the 'filling of lacunae', as contended by the learned counsel for the petitioner, that is purely a subsidiary factor and cannot be taken into consideration.
6. Although an application to invoke this provision can be initiated at any stage, however, in case the same is done at the initial stage, it may be a factor to see that no unfair advantage or prejudice is likely to be caused to the accused. He can cross-examine these witnesses right at the initial stage of the proceedings and modulate his defence accordingly. The apprehension of the accused in the present case, as contended by Shri Vijay Pandit, his counsel, is not well founded so also the contention that this step should have been initiated at a later stage after the examination of a few more witnesses by the prosecution. At this stage, the evidence of only the complainant has been recorded. In my opinion there is no infirmity in the order of the learned trial Judge to have allowed this application at this stage. The only thing to be seen is whether this power has been exercised rightly and in the interest of justice which fact is assailed vehemently by the accused in the present case. Examination of the impugned order desclosed no such approach by the trying Magistrate; rather power has been exercised 'ex debito justiciae'. The reasons given are legally permissible and based on sound exercise of power.
7. These witnesses have been shown to be eye witnesses of the occurrence. Normally, the prosecution must associate and examine all the eye witnesses but where it has failed to examine anyone or none, the Court can, in the interest of justice, examine such witnesses under this section. The contention of the learned counsel for the accused that only those witnesses can be examined whose statements have been recorded by the police under Section 161 of the Code of Criminal Procedure and find mention in the list of witnesses submitted with the challan under Section 173 of the Code, if accepted, will render the provisions of Section 311 of the Code of Criminal Procedure nugatory. These provisions, namely, Sections 161, 173 and 311 of the Code of Criminal Procedure, have got different object, scope and operate in different spheres. The contention of the learned counsel for the accused is, therefore, completely divorced from the object, scope, tenor and spirit of these provisions; hence liable to be rejected.
8. In view of the discussion made above, I see no infirmity in the order of the trial Judge.
9. The result is, there is no merit in this petition and the same is accordingly dismissed.