Madan Lal Vs. the State of Rajasthan - Court Judgment

Excerpt:
opium act - section 4/9 and criminal procedure code--section 311--trial court allowed application under section 311 for summoning witnesses--accused not yet examined under section 313 and he would get opportunity to cross examine witnesses--held, trial court committed no illegality.;the learned lower court has not committed any illegality in allowing the application filed by the assistant public prosecutor and, also, in summoning the witnesses aforesaid. the statement of the accused under section 313 cr.p.c. has not yet been recorded and he will have an opportunity to cross-examine these witnesses.;petition dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. b.r. arora, j.1. this miscellaneous petition is directed against the order dated november 6,1989, passed by the munsif and judicial magistrate, first class, chittorgarh, by which the learned magistrrate allowed the application under section 311 cr.p.c, tiled by the assistant public prosecutor and allowed the assitant public prosecutor to produce the witnesses.2. accused-petitioner is facing trial under section 4/9 the opium act in the court of the munsif and judicial magistrate, first class, chittorgarh. during the pendency of the trial, an application was moved by the learned assistant public prosecutor for summoning the witnesses, viz., o.p. puri, durga lal, chaturbhuj and chunni lal. the learned magistrate, by his order dated november 6,1989, allowed the application filed by the assistant public prosecutor and directed the a.p.p. to produce the witnesses o.p. puri, chaturbhuj and durga lal himself on february 12,1990 and he may summon the witness chunni lal through the court. it is against this order that the present petition under section 482 cr.p.c. has been filed.3. heared the learned counsel for the petitioner and the learned public prosecutor.4. the learned magistrate, while deciding the application, held that it would be in the interest of justice to summon the witnesses and he, also, was of the opinion that the evidence of these witnesses was essential for just decision of the case. it is not in dispute that the powers under section 311 cr.p.c. should not be used by the court to fulfill the lacuna and latches of the prosecution, but if the court comes to the conclusion that the examination of the witnesses is essential to the just decision of the case then the court must call those witnesses. the examination of these witnesses is essential for the proper decision of the case and, therefore, in my opinion the learned lower court has not committed any illegality in allowing the application filed by the assistant public prosecutor and, also, in summoning the witnesses aforesaid. the statement of the accused under section 313 cr.p.c. has not yet been recorded and he will have an opportunity to cross-examine these witnesses.5. in this view of the matter, this miscellaneous petition, filed by the petitioner, has got no force and is hereby dismissed.