Lalu @ Lalsingh S/O Viramji and anr. Vs. State of M.P. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. orderj.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.

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.