JUDGMENT
N.L. Tibrewal, J.
1. The petitioner is facing trial in the court, of Additional Sessions Judge No. 1, Ajmer, alongwith coaccused Syed Nazir Ahmed, for the offences under Sections 498A & 304B IPC. The Co-accused Syed Nazir Ahmed is the husband of the deceased Smt. Naznin Noor and the petitioner is his brother-in-law (gainer).
2. Smt. Naznin Noor was married to the co-accused Syed Nazir Ahmed on 3.6.1990. She died due to burns at her husband’s house on May 29, 1991. A report of the incident was lodged by the brother of the deceased at Police Station-Ganj, Ajmer, on which crime No. 96/91 was registered under Sections 302 & 304B IPC. In the report, it was given out by the informant that his sister was murdered by her husband for dowry.
3. After registration of the case, investigation was carried on by the Dy. S.P., who recorded the statements under Section 161 Cr.P.C. of several witnesses including of Smt. Sugra Bibi, Syed Farookh Ali, Mohd. Akhtar, Ishaq Moh. and Nooruddin. It may be stated here that Smt. Sugra Bibi was living as a tenant in the groundfloor of the same house where Smt. Naznin Noor had died. The witnesses Syed Farookh Ali and Mohd. Akhtar are neighbours. The witness Ishaq Mohd. is the servant of the petitioner and Nooruddin is his son.
4. The investigation was also made by the CID (CB). Ultimately, a chargesheet was filed against Syed Nazir Ahmed and the petitioner Syed Firozuddin for the offences under Sections 302 & 304B IPC. However, the trial Court framed charges under Sections 498A & 304B IPC and no charge Under Section 302 IPC was framed against the accused persons. It is noteworthy that the statements of the aforesaid five witnesses, recorded under Section 161 Cr.P.C. were included in the police papers submitted along with the chargesheet, and their names were also included in the calendar of the witnesses to be examined by the prosecution.
5. During the trial, the prosecution examined 15 witnesses but the aforesaid five witnesses were given up by the Public Prosecutor. When I asked the learned Public Prosecutor to spell out the reasons for not examining the above witnesses, he replied that these witnesses were not material witnesses, hence they were given-up.
6. Then, the petitioner moved an application Under Section 311 Cr.P.C. in the trial Court to summon and examine the above witnesses, but the said application was rejected by the learned Judge by his impugned order dated July 16, 1992. In view of the learned Judge the examination of these witnesses was not necessary as they had spoken nothing in their statements under Section 161 Cr.P.C. about the behavior of the accused persons towards the deceased Smt. Naznin Noor.
7. Being aggrieved against the aforesaid order, the petitioner has approached to this Court under Section 482 Cr.P.C.
8. The contenction of the learned Counsel is that the petitioner is facing trial under Section 498A & 304B IPC, and in such a case, the important and material evidence is, as to whether the deceased was subjected with cruelty or harassment by her husband or any relative of her husband, and, whether such cruelty or harassment was for or in connection with demand of dowry. According to the learned Counsel, for the proof of the facts, the neighbours are the best witnesses to speak about it. The neighbours can tell to the court if the deceased was subjected to cruelty or harassment either by the husband or any relative of her husband and whether any demand of dowry was made by them. The learned Counsel, therefore, contended that these witnesses are essential to be examined for the Just decision of the case.
9. On the other hand, the learned Special Public Prosecutor and the learned Counsel for the complainant vehemently argued that the trial court rightly observed that these witnesses did not state anything about the Incident, as such, their evidence was not essential to unfold the prosecution story. It was contended that the witness Ishaq Mohd. is the servant of the petitioner and he cannot state anything about the incident as he was working in a house which is far way from the place of incident where the deceased resided with her husband. Similarly, the witnesses Nooruddin is the son of the petitioner and his examination as a court witness cannot be just and proper. They further urged that the discretion has been exercised by the trial court and this Court should not interfere in exercise of Its powers under Section 482 Cr.P.C.
10.I have given my careful consideration to the above submissions. Section 311 Cr.P.C. read as under:
311. 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 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.
11. A bare perusal of the above section reveals that it is in two parts. In the first part, the word ‘may’ has been used, while in the second part, the word ‘shall. Therefore, the first part which is permissive give discretionary authority to the criminal court and enables it ‘at any stage of enquiry, trial or other proceedings’ to act in one of the three ways namely; (a) to summon any person as a witness, or (2) to examine any person In attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined.
12. The second part which is mandatory imposes an obligation on the Court-(1) to summon and examine, or (2) to recall and reexamine any such person If his evidence appears to be essential to the just decision of the case.
13. Section 311 of the Code is couched in the widest possible terms and do not limit the discretion of the Court In any way. However, the discretion has to be exercised judicially and the power is to be invoked in the exigencies of justice require. But, if the evidence of any person is essential to the just decision of the case, then, the second part of the section makes it mandatory and obligatory to the Court to summon and examine such witness.
14. In Mohanlcd Shamji Sonl v. Union of India and Anr. 1991 Cr.L.J. 1521, the Apex Court of the country had an occasion to examine the ambit and the scope of Section 311 Cr.P.C. After examining Sections 311, the Court observed as under:
The very usage of the words such as “any court”, ‘at any stage’ or any enquiry, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicial with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but in binds any compels the Court to take-any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.
It was further observed:
It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue.
15. The Court also examined the situation when a particular witnesses is left either by the prosecution or the defence and the argument that in such a case, the Court can draw an adverse presumption under illustration (g) to Section 114 of the Evidence Act. The Court observed:
In such a situation, a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat 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 discharged 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 justice and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings 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 re-examine any person a/ready 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 be defeated.
16. In the back ground of the above proposition of law, I have to examine whether the trial court acted rightly and judicially in declining the prayer of the accused petitioner to summon the above mentioned five witnesses. As already stated earlier, the petitioner and the co-accused are facing trial under Sections 498A & 304B IPC. There is no dispute that the deceased Smt. Naznin Noor had died on account of burns. The real dispute is, whether she was subjected to cruelty or harassment by her husband or the petitioner and, whether such cruelty or harassment was in connection with demand of dowry. On these facts, the witnesses of the neighborhood are always material and important, as they have occasion to see the behavior and relationship of the accused person towards the deceased. Whether their statements should be relied or not, is a question to be decided by the trial court, but, it cannot be said that their evidence is not essential to the just decision of the case. Out of above five witnesses, Smt. Sugra Bibi was residing as a tenant in the same house where the deceased had died, and, similarly, the witnesses Syed Farookh Ali and Mohd. Akhtar were the neighbours who resided near the house of the deceased. The statements of these witnesses were recorded by the police under Section 161 Cr.P.C. and they were also cited as prosecution witnesses. In their statements, they have, not stated that the accused persons treated the deceased with cruelty or otherwise harassed her or made any demand of dowry. It is true that these witnesses have not stated either this way or that way on the above important and material; facts but, their evidence can throw light on these facts if they are examined by the trial court. In my view, their evidence may be of great assistance to the just decision of the case. The reason given by the trial court declining the prayer of the petitioner does not appear to be sound when it observed that these witnesses did not state anything in their statements under Section 161 Cr.P.C. about the prior conduct of the accused persons towards the deceased. The Court should have further considered as to whether these witnesses were in a position to throw light about the previous conduct and behavior of the accused persons towards the deceased. As the test should be, whether a person can give evidence which may be essential to the just decision of the case. Taking into consideration the nature of the charges which the accused persons are facing, I am of the considered view that the evidence of Smt. Sugra Bibi, Syed Farookh Ali and Mohd. Akhtar may assist to the just decision of the case.
17. So far the witnesses Ishaq Mohd. and Nooruddin are concerned, suffice it to say that Nooruddin is the son of the petitioner, while Ishaq Mohd is his servant. Admittedly, Ishaq Mohd. was not serving in the house where the deceased had died. The examination of these witnesses, as court, witnesses, is not just and proper.
18. For the powers of this Court under Section 482 Cr.P.C. it may be stated that such powers can be exercised by the Court to secure the ends of justice. The trial Court rejected the prayer to summon and examine the witnesses, whose evidence is essential to the just and proper decision of the case, and in doing so, it failed to perform its obligatory and mandatory duty, as such, this Court could and should exercise its powers under Section 482 Cr.P.C. in a situation like the present one.
19. Consequently, the petition is allowed in part. The order of the trial court, so far it relates to the examination of the witnesses Smt. Sugra Bibi, Syed Farookh Ali and Mohd. Akhtar is set aside and it is directed that they be summoned and examined under Section 311 Cr.P.C. The order of the trial court for the witnesses Ishaq Mohd. and Nooruddin is maintained. A copy of this order be sent to the trial court immediately.