ORDER
1. The applicants accused being aggrieved by the order dated 11-1-2001, passed in Sessions Trial No. 7/2000, by the learned Additional Sessions Judge, Surajpur, granting the application of Sukul Ram and Prabhu Ram for their examination as witnesses, have come to this Court.
2. The prosecution case in brief is that the present applicants had committed murder of certain persons and as the eye-witness account was available against them, they were liable to be prosecuted. During the course of the trial, number of witnesses were examined. On 2-11-2000 Sukul Ram and Prabhu Ram, referred to as the proposed witnesses made an application duly supported with an affidavit that they are material witnesses of the trial, therefore, and as they had seen the accused persons committing the offence, their statements be recorded in the trial. The application was opposed by the present applicants, but the learned trial Court granted the application and directed that the two persons be examined as witnesses.
3. Shri R.S. Singh, learned counsel for the applicants submits that as the witnesses already examined by the prosecution do nowhere say that the proposed witnesses were near the spot or had seen the incident or could witness the incident, they could not be examined as additional witnesses under Section 311, Cr.PC. He also submits that unless the Court records finding that the witnesses are material witnesses and their examination is required for just and proper disposal of the matter, the persons cannot be examined as witnesses. Referring to the inquest of the dead bodies, he submits that Sukul Ram and Prabhuram were present at the time of inquest but as they did not narrate anything to the police it must be held that they are concocted and brought-up persons. It is lastly submitted that the prosecution did not make any application for their examination and as they have voluntarily offered themselves as witnesses, they cannot be examined as witnesses.
4. Miss Singhai and Shri Shivraj Singh, learned counsels for the State and Objector submit that the Court below is not faultered in granting the application and the arguments raised by the applicants are mis-conceived.
5. I have heard the parties at length and have perused the records.
6. For proper appreciation of the dispute it would be apt to refer to Section 311, Cr.PC. Section 311, Cr.PC reads as under :–
“Section 311. Power to summon material witness, or examine person present — Any Court may, at any stage of any inquiry, trial or other proceedings 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.”
7. From a perusal of the language employed in Section 311, Cr.PC, it would clearly appear that the section empowers the Court to summon material witness or to examine a person present in the Court or to recall a witness already examined. The section in fact confers wide discretion on the Court to act in view of the exigencies or to meet the demand of justice. This section if gives unfettered discretion to the Court, then it would not be proper for a Revisional Court to interfere in the matter, unless it is shown that the discretion has been exercised illegally or with material irregularity or without any jurisdiction. There is no dispute before me that the Court had jurisdiction to examine or summon the witness, but the argument is that as the witnesses already examined in the Court did not name the proposed witnesses as witnesses of the incident, they cannot be examined. The argument is that these witnesses are unreliable because neither they had been examined by the police nor they had come forward on the earlier occasion. The argument of the learned counsel for the applicants is based on the foundation that because the witnesses already examined did not name the present objectors/proposed witnesses as eye-witnesses, therefore, the proposed witnesses are unreliable.
8. In the opinion of this Court, if the argument is accepted it would lead to a judicial anarchism. Unless a witness is examined in the Court, unless his statements are tested on the anvil of the cross-examination and unless his statements are scrutinized and properly appreciated by the Trial Judge, it would be too early and premature to say that the said witness is an unreliable witness. Unless somebody sees the quality of the statements of a person, it cannot be said that the person is unreliable. The circumstances in which a person is required to be examined are different than the circumstances which makes him reliable. The reliability does not depend upon the quantity, but it depends on the quality. If the other witnesses do not say that the proposed witnesses were not on the spot, then too the Trial Court will have to appreciate after scrutinizing the statements available on the record that whether the first set of the witnesses is to be relied upon or the second set. The submission of the learned counsel that the Court below should not have granted the application because the witnesses are unreliable is rejected.
9. So far as the question relating to the witnesses being material or not is concerned, a perusal of the order passed by the Court below would show that the Trial Court had applied its mind to the contents of the application so also to the statements made in the affidavit. The Court has clearly recorded that the proposed witnesses had stated in the Court that they were the eye-witnesses and they knew about the incident.
10. A Court is required to summon any person as a witness, if the Court is satisfied that the evidence of such witness appears to it to be essential to just decision of the case. Legislature in its wisdom did not use the phrase “Where the Court is satisfied that it would be essential to examine the witness”, but the legislature had used the phrase that “if his evidence appears to it to be essential”. There is a great distinction between the word ‘satisfied’ and ‘appears’. In a case where the Court is required to record its satisfaction, then the Court is required to give the reason which persuades to record its satisfaction, but in a case where the Court simply has to say that a particular thing appears to be essential, then the Court is not required to give the reasons for its satisfaction.
11. The arguments that the Court below has not considered the facts that the witnesses are material or not and whether their examination was essential for just decision of the case, are rejected.
12. So far as the presence of the witnesses at the time of the inquest is concerned, the same should not detain this Court un-necessarily at this stage because the witnesses would be in a position to explain their conduct; if they do not explain their silence at the time of inquest, then the applicants would be entitled to cross-examine them or elucidate better facts.
13. So far as the arguments relating to application not being submitted by the prosecution is concerned, the argument is misconceived. In a criminal case any person who feels that he knows about the incident or his statements may serve the cause of justice, may make an application to the Court for his examination as a witness. Whether such application is to be allowed or not would depend upon the judicial discretion of the Court. It cannot be said that a private party has no right to make an application to the Court either for taking part in the proceedings or its examination as a witness. True it is that the State is custodian of the law, law and order and prosecution proceedings, but that does not debar a private party to enter in the scene and seek assistance of the Court or provide assistance to the Court.
14. After hearing the learned counsel for the parties, I am unable to hold that the learned Court below was unjustified in granting the application of Sukul Ram and Prabhu Ram.
15. The revision deserves to and is accordingly dismissed.