ORDER
Fakhruddin, J.
Heard finally.
1. The applicant is facing charges under Sections 466, 467 and 471, IPC. Criminal Case No. 167/2001 is pending since 16-12-2001 in the Court of JMFC, Gariyaband. In view of direction issued by Hon’ble High Court regarding expeditious disposal of the case, the learned Trial Judge closed the prosecution evidence, but subsequently the Court in its discretion considered that the examination of investigating officer is necessary for adjudication of the matter and as such fixed the case for recording the statements of Investigating Officer. The petitioner preferred revision and the IIIrd Addl. Sessions Judge, Raipur by order dated 17-6-2002 dismissed the revision on the ground that the provisions contained in Section 311, Cr.PC the Court has wide discretion to call for the witnesses for evidence at any stage.
2. Learned Counsel for the petitioner submits that the Trial Court grossly erred in re-fixing the case for prosecution evidence which was earlier closed after going through the complete record keeping in view the direction of the High Court that as the case is pending for 7 years, the matter be decided expeditiously.
3. Counsel for the State submitted that so far as examination of Investigating Officer in a criminal trial is concerned, the same is necessary not only for the prosecution, but equally for the defence as well. It is pertinent to note here that this Court had occasion to deal with the similar question raised in Deenanath Singh v. Omprakash and Anr., M.Cr.C. No. 1530 of 2002 = 2002(3) M.P.H.T. 9 (CG), passed on 15-1-2003.
4. So far as examination/recall of witnesses is concerned, Section 311 of Cr.PC empowers the Court to summon a material witness or to examine a person present in the Court or to recall a witness already examined. It is further noted that this power is found in Section 165 of the Indian Evidence Act. The decision of Supreme Court, Jamatraj v. State of Maharashtra, reported in AIR 1968 SC 126, is more relevant here, in which it has been held in Paragraphs 5 and 6 as under:–
“5. The question falls to be considered under Section 540 of the Code of Criminal Procedure, that section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as ‘miscellaneous’. It provides:
“Section 540 : 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 essential to the just decision of the case.”
6. The section gives a power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in Section 165 of the Indian Evidence Act which provides:
“Section 165 : The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant, and may order the production of any document or thing; and neither, the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross examine any witness upon any answer give in reply to any such question.”
These two Sections between them confer jurisdiction on the Judge to act in aide of justice.”
5. So far as Section 311 of Cr.PC is concerned, it can be exercised at any stage by the Court. It can be exercised at the behest of accused, at the behest of defence and even at the behest of prosecution. Section 311, Cr.PC empowers the Court to summon material witness. The Supreme Court in the case of Shailendra Kumar v. State of Bihar, reported in 2001 AIR SCW 4984, in Para 11 has held that:–
“11. Bare reading of the aforesaid section reveals that it is of very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Parsed v. Narcotic Cell [(1999) 6 SCC 110] observed : “After all function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”
6. In the opinion of this Court, examination of the Investigating Officer in a criminal case is most essential not only from the point of view of establishment of the prosecution case but also for substantiation of the defence case. The presence of Investigating Officer was necessary.
In this connection, the judgment of the Hon’ble Supreme Court in the case of P. Ramachandra Rao v. State of Karnataka, reported in (2002) 2 LRI 337, is also pertinent. In Paragraphs 32 (1) to 32 (5) of the judgment, it has been held that:–
“For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceedings cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold :
(1) The dictum in A.R. Antulay’s case is correct and still hold the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guide lines in A.R. Antulay’s case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions.
(3) The guidelines laid down in A.R. Antulay’s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The Criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the Courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay’s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the Court to terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers.
Such as those under Sections 309 and 258 of the Code of Criminal
Procedure to effectuate the right to speedy trial. A watchful and
diligent Trial Judge can prove to be better protector o such right
than any guidelines. In appropriate cases jurisdiction of High
Court under Section 482 of Cr.PC and Articles 226 and 227 of
Constitution can be evoked seeking appropriate relief or suitable
directions.”
7. The matter has been examined by the Courts below and after hearing the parties and considering the facts and circumstances, it has been held that examination of the witnesses is necessary. Let the witnesses be examined and if occasion arises, questions be put to the accused under Section 313 of the Cr.PC and the accused be given liberty to lead evidence, if so desire.
8. Having thus considered the facts and circumstances and material on record and in view of the discussion made hereinabove, no case is made out warranting interference in the impugned order in exercise of its revisional jurisdiction.
9. Learned Counsel for the applicant at this stage points out that for 4 months, the prosecutor did not appear as such further delay is being arisen. It was the duty of the prosecution to get the witness present. If there is a failure on part of any of the witnesses to remain present, it is the duty of the Court to take action including issuance of bailable warrant/non-bailable warrants as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left to lurch.
10. State shall see that the prosecutor should appear and witness is produced in Court and in case of non-appearance, Court must deal firmly in accordance with law. The prosecutor shall render due assistance to the Court and because of its non-cooperation, difficulties are faced by the Courts. If the prosecutor does not turn up, the District Magistrate and Sessions Judge be informed who shall take up the matter with the Law Secretary of the State.
Accordingly, this revision stands disposed of. C.C. as per rules.