IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Vinod Kumar Singh vs. The State of Rajasthan (S.B. CRIMINAL MISC. PETITION NO. 989/1999) Date of Order: 27/11/2008 PRESENTS HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. R.D. Tripathi on behalf of Mr. S.D. Sharma, for the petitioners. Mr. B.K. Sharma, Public Prosecutor for the State. By the Court: (Oral).
This criminal misc. petition has been filed by the petitioner against the order dated 22.10.1999 passed by the learned Additional Chief Judicial Magistrate No. 1, Jaipur District, Jaipur in Criminal Case No. 85/1999, Whereby he has allowed an application filed by the prosecution under Section 311 Cr.P.C.
2. Brief facts of the case are that a First Information Report had been registered on 24.02.1999, at Police Chaksu, District Jaipur (Rural) for the offence under Section 420 I.P.c. On conclusion of the investigation, a charge-sheet came to be filed for the offences under Section 419 and 420 I.P.C. Subsequently, charges were also framed against the accused-petitioner, for the aforementioned offences.
3. After the conclusion of the trial, the final arguments came to be heard by the trial court on 29.09.1999 Thereafter, the case was fixed for pronouncement of judgment on 05.10.1999. It was at that stage that the prosecution had filed an application under Section 311 Cr.P.C. praying therein that seven more witnesses be called in the case. The said application was strongly opposed by the accused-petitioner. However, the application was allowed by the learned trial court, by its impugned order dated 22.10.1999.
4. The learned counsel for the petitioner has submitted that the order passed by the learned trial court is wholly illegal and contrary to the settled principles of law. He has submitted that the instant case is one, whereby the application under Section 311 Cr.P.C. has been filed by the prosecution to fill up its lacuna. In this regard, he has stated that none of the seven witnesses were neither named in the First Information Report nor there statements were recorded under Section 161 Cr.P.C. nor their names find place in the calender of witnesses, at the time of filing of challan by the investigation agency. He has further submitted that though the provision of law is that an application for calling of witnesses under Section 311 Cr.P.C. can be made at any stage, but in the instant case the stage, as referred in the aforesaid provisions, had also been over during the trial. According to him, the final hearing in the case had taken place and the case was fixed for pronouncement of judgment. Therefore, in such view of the matter, the stage of trial had already been offered.
5. In support of his submissions, the learned counsel for the petitioner has placed reliance on the cases of Mandholi Kalan vs. The State of Haryana, 1984 (3) Crimes 220, Narayan Lal vs. Bhanwar Lal & Ors., 1988 Cr.L.R. (Raj.) 674 and State of Karnataka vs. Venugopal & Ors., 2004 Cr.L.J. 2899.
6. On the other hand, the learned Public Prosecutor has submitted that the order passed by the learned court below is fully in accordance with law. Further, he has submitted that the application under Section 311 Cr.P.C. can be filed by the prosecution, at any stage of the trial. He has also informed that after filing of the instant petition, some witnesses had been examined by the trial court and it is only thereafter that the trial came to stayed by calling the record of the trial court. The learned Public Prosecutor has submitted that the calling of seven witnesses was not to fill up lacuna of the prosecution because they were the persons who had filled up forms in this case.
7. I have given my thoughtful consideration to the rival submissions made by the parties. The contention raised by the learned counsel for the petitioner that an application under Section 311 Cr.P.C. is maintainable at any stage of trial but in the instant case that stage had already passed, has merit. In this case, undisputedly, the trial before the court below had been terminated, so much so, that even the final arguments had been heard and it was only for the purpose of pronouncement of judgment that the case was posted.
8. Before proceeding further, it would be relevant to refer the provision of Section 311 Cr.P.C,-
The 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 such person if his evidence appears to it to be essential to the just decision of the case.
According to this provision, the summoning of the witness is in two parts. Under the first part, any court may, at any stage of inquiry, trial or other proceedings under the Code, summon any person in attendance, though not summoned as a witness or recall and re-examine any person already examined. Under the second part, the court is duty bound to summon and examine or recall and re-examine any such person if his evidence appears to be essential to just decision of the case.
The powers conferred by the first part is discretionary and such discretion has to be exercised in accordance to the established principles of law. However, under the second part of the provision of Section 311, there is no discretion to summon or not to summon a witness. If the court comes to to conclusion that it is necessary for the just decision of the case, the court is duty bound to summon and examine or recall or re-examine any person, if his evidence appears to be essential for just decision of the case. This view of mine is supported by the judgment of the High Court in the case of Balwant Singh vs. State of Rajasthan, 1986 Cr.L.J. 1374.
9. Further, the provision under Section 311 Cr.P.C. can be exercised at any stage of any enquiry, trial or other proceedings. The words ‘enquiry’, ‘trial’ or ‘other proceedings’ are mentioned in the alternative. In the instant matter, it was a trial case. When the provision mentions alternatively ‘other proceedings’ as distinct from ‘enquiry’ and ‘trial’, the other proceedings shall be different than trial. Undisputedly, in the present case, there was a trial and final argument had been heard on 29.09.1999. Thereafter, the case was posted for judgment on 05.10.1999.
10. Section 353(1) of the Code of Criminal Procedure provides about the judgment, which reads thus:-
353(1). The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleader,-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.
In other words, the stage of a judgment comes on termination of the trial. A judgment can come immediately after termination of the trial or on the subsequent date which may be given for the same and the case is so posted. Therefore, when case is posted for judgment, the trial stands terminated.
11. In the instant case, the case was posted for judgment on 05.10.1999 by the learned court below and this shows that the trial had been terminated on 29.09.1999, in view of the provisions under Section 353 Cr.P.C. When the provision under Section 311 Cr.P.C. are to be exercised at any stage of enquiry, trial or other proceedings and, as mentioned above, the word ‘other proceedings’ is in the alternative to the trial. Therefore, in the present case, being one of a trial and was posted for judgment, stage of trial had come to an end.
In other words, the trial in the present case was already over when the learned court below had posted the matter for judgment. Consequently, the powers under Section 311 of the Code could not have been exercised by the learned Magistrate once the trial stood terminated and the case was posted for judgment. The said provisions cannot be invoked by the learned Magistrate on the day when the matter is posted for judgment. Therefore, the order impugned in the present case is not sustainable under law on this count alone.
12. So far as calling of witnesses, by filing an application under Section 311 Cr.P.C., because they were witnesses who had filled up forms, are concerned, suffice it to say that other witnesses for that purpose had already been examined as for instance, Babulal (PW-1), Kailash Puri (PW-2) and Ram Narayan (PW-3) who had deposed in respect of filling up of the forms and they had already come in the witness box during the trial.
13. For the aforesaid reasons, this criminal misc. petition succeeds. Consequently, this criminal misc. petition is allowed and the order dated 22.10.1999 passed by the learned Additional Chief Judicial Magistrate, No. 1, Jaipur District, Jaipur in Criminal Case No. 85/1999 (State vs. Vinod Kumar Singh) is quashed and set aside.
The record of the trial court be sent forthwith.
(RAGHUVENDRA S. RATHORE),J.
tikam/-Jr.P.A.s-22