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TMI Blog2010 (3) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, whereby it was alleged that at about 8.00 in the morning the first informant, namely Sanjeev Singh along with his companions, namely Rajnish alias Rajji Saxena, Chaman Kori, Ballu alias Balram Birha and Bablu alias Bassi Musalman had gone to Mandla for taking part in sand contract and when in the night they were returning from Mandla in Centro Car bearing registration No. MP-20-FA/2655 of Bablu Musalman and reached near Kapur crossing at Katanga and while going towards Gorakhpur Bazar and reached Azad Chowk, at that time one motor cycle driven by Majid Karia of Naya Muhalla with Sarfaraj of Naya Muhalla with a pistol and Abbas with a weapon, came by the side of the car and opened fire which resulted injuries to Rajnish, Bablu and Chaman Kori. FIR was registered against Majid, Sarfaraj, Abaas, Mehmood, Maksood and one more unknown person. Rajnish alias Rajji died as a result of gun shot injuries. Police statement of Mohd. Haleem was recorded on 22-2-2005. After investigation, challan was filed on 20-12-2005 and the case was committed to the Court. 5. During pendency of the investigation on 6-10-2005 C.S.P. Shri Siddharth Choudhary, Police Station, Gorakhpur, filed an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el of the objector has only to assist the case of the prosecution and he has no right to file an application without permission of Public Prosecutor. Relevant part of the order reads as under: (Vernacular matter omitted. ... Ed.) 10. On 2-9-2008 one Shri Sheikh Nazeeruddin, Advocate along with witness Mohd. Haleem, S/o Mohd. Saleem has filed an application for granting protection to Mohd. Haleem and for his examination as a witness in the case. On 6-4-2009 the trial Court after going through the order sheet and the fact of the service on the person examined on 12-11-2007 as PW-3 in the name of Mohd. Haleem passed an order directing the Investigating Officer to conduct the enquiry with regard to the fact that the person who had appeared before the Court as the witness examined by the investigating agency was the witness examined during the course of investigation. On 18-4-2009 an application was filed by the accused having grudge against the Investigating Officer Rajesh Tiwari to the fact that he will not conduct the enquiry in an transparent impartil manner. Considering the above, trial Court ordered for enquiry regarding genuineness of witness PW-3 Mohd. Haleem and directed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for examination of genuine prosecution witness Mohd. Haleem. It is this action by which the petitioners are aggrieved and filed these petitions under Section 482 of the Code. 12. It is submitted by learned Counsel for the petitioners that learned trial Court without appreciating the facts and circumstances of the case in proper perspective, has ordered for re-examination of PW-3 whereas the matter has attained the finality. It is further urged that subject matter of an application for re-calling/re-cording the statement of PW-3 has already been rejected on 15-12-2007 and 2-9-2008 and the said orders attained finality as no revision or petition was filed against the said orders and the learned trial Court without properly appreciating the provisions engrafted under Section 311 of the Code passed the impugned order which is not permissible under the law, and ends of justice would be defeated. In support of the said contention, learned Counsel for the applicant drew my attention to the decision of the Apex Court in the case of Zahira Habibullah, Sheikh and Anr. v. State of Gujarat and Ors. (2004) 4 SCC 158 : 2004 Cri LJ 2050 and Satyajit Banerjee and Ors. v. State of W.B. and Ors. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has not challenged the order of conduction of enquiry of the trial Court dated 6-4-2009 but merely made an singular objection to this regard that the enquiry be not conducted by Investigating Officer Rajesh Tiwari only. Learned trial Court has discovered the truth after the conclusion of the enquiry that the witness present in the Court is the witness cited by the Investigating Agency and thereafter only the summons for his examination was issued by the trial Court. He further submitted that on the earlier occasion when the objector had raised the plea for conduction of enquiry, his prayer was declined firstly on the ground that none has appeared in the trial Court to press the application and in absence of adverse finding and thereafter on the ground that the counsel assisting the prosecution has no locus standi to file such an application and, therefore, it cannot be said that earlier order dated 15-12-2007 and 2-9-2008 had attained finality and prayed for dismissal of both the petitions. 16. Section 311 of the Code reads as follows: 311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is 'at any stage of any inquiry or trial or other proceeding under this Code'. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. 18. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: It is, that the Courts shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short 'the Evidence Act') are used on this rule. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any persona already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e truth by all lawful means. Therefore, it should be, borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. 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. 27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners/accused persons are that they had produced an impersonator in place of material prosecution eye-witness Mohd. Haleem on 12-11-2007 as PW-3 and this impersonator has signed the order sheet of the trial Court dated 12-11-2007 after giving evidence projecting himself to be Mohd. Haleem whereas this fact was came to the knowledge of the trial Court when enquiry was conducted and report was submitted by Siddharth Choudhary, the then CSP and report of State Examination of Question Documents, Government of M.P., Bhopal that PW-3 Mohd. Haleem is different from the person who has given statement under Section 164 of the Code and PW-3 is not the real truthful witness and in place of Mohd. Haleem. Court statement of some other person has been made before the trial Court. Thus, I am of the view that learned trial Court for the purpose of finding out the real genuine truthful witness has passed the impugned order for examination of real genuine witness Mohd. Haleem. 23. The trial is pending and the learned trial Court before finally deciding the case thought to exercise its power under Section 311 for just and proper decision of the case to find out the guilt or innocence. In such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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