JUDGMENT
Chandramauli Kumar Prasad, J.
1. This application has been filed for quashing of a portion of the order dated 30-3-2001 passed by 4th Additional Sessions Judge, Ara, in S. Tr. No. 375/98 whereby the application filed by the accused-personss-petitioners dated 29-3-2001 to examine the witnesses shown as prosecution witnesses in the charge-sheet and other official witnesses as Court witnesses has been rejected.
2. Shorn of unnecessary details facts giving rise to the present application are that on the basis of a report given by one Hare Kishqre Singh, Udwantpur P.S. Case No. 62/98, dated 6-4-1998 under Section 302/34, IPC and Section 27 of the Arms Act was registered against the petitioners. After investigation, the police submitted charge-sheet and in the charge-sheet the names of the witnesses were also given which included Krishna Singh, Ramji Singh, Rambalak Yadav, Jivnandan Singh and Rambadan Yadav. During the course of trial the prosecution did not examine the aforesaid witnesses but had examined other witnesses. After the close of the evidence of the prosecution the petitioners filed an application on 29-3-2001 for examination of the aforesaid witnesses as Court witnesses under Section 311 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’). In the said application, further prayer was made to examine K.D. Kumar, Inspector of Police, Bhim Mahto, Assistant Sub-Inspector of Police and Deputy Superintendent of Police, who had supervised the case for examination as Court witnesses. The Sessions Judge by the impugned order rejected the application of the petitioners observing that Sub-Inspector of Police, K.D. Kumar and the Assistant Sub-Inspector of Police, Bhim Mahto had nothing to do with the investigation and as such prayer made by the petitioners to examine them as Court witnesses is absolutely misconceived. The Sessions Judge also took note of the fact that there is no supervision note of the Dy. S.P. and his examination under Section 311 of the Code is not warranted. The Sessions Judge further observed that it is not the duty of the Court to collect the evidence for the defence and examine the witnesses as Court witnesses and if the petitioners are so advised the maney examine them as defence witnesses.
3. It is relevant to state that Mr. Baksi S.R.P. Sinha has filed power on behalf of the State and when he wanted to make submission opposing the prayer of the petitioners Mr. Madhup has taken a stand that in the present, Case the petitioners are being prosecuted by the State and as such informant cannot be allowed to be represented by any other counsel excepting Public Prosecutor and Assistant Public Prosecutor to oppose the prayer made by the petitioners.
4. In this connection, Mr. Madhup has drawn my attention to Section 301 of the Code and contends that Public Prosecutor or Assistant Public Prosecutor in charge of the case, who may appear and plead without any written authority but counsel of a private person has to act under the direction of Public Prosecutor or Assistant Public Prosecutor in charge of the case and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. He points out no such direction has been given by the Public Prosecutor.
5. Mr. Baksi, however, submitted that it was at the instance of the informant that the case has been registered and ultimately the petitioners have been put on trial and as such he has right to address to the Court so as to come to the right conclusion.
6. Having appreciated the rival submissions, I am not inclined to accept the extreme stand of Mr. “Madhup. True it is, that in the present case, the State is the prosecutor but the prosecution of the petitioners is on the basis of the report given by the informant. To say that informant had no say in the case is over simplifying the matter. I am of the opinion, this Court shall not shut out any person to address the Court, if representation by such a person or a body shall assist this Court in coming to a right conclusion.
7. Here in the present case the representation has been made by no other person than the informant himself. Assistance by his Counsel shall be of help to this Court in coming to right and just conclusion and hence, I overrule this objection of Sri Madhup.
8. On merits, Mr. Madhup contends that the examination of the witnesses named in the charge-sheet is essential to just decision of the case and as such the Sessions Judge erred in law in not examining them as Court witnesses. In support of his, submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Mohanlal Shamji Soniv. Union of India AIR 1991 S.C. 1346 and my attention has been drawn to para 10 of the judgment which reads as follows:
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. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. 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 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 inquiry, 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 of re-examine any person in attendance though not summoned as a witnesses or recall and re-examine any person 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 be defeated.
Mr. Bakshi, however, appearing on behalf of the informant submits that the names of these witnesses, figured in the charge-sheet but have been gained over and accordingly prosecution had filed an application before the trial Court and their examination was given up. In that view of the matter, learned Counsel contends that those witnesses cannot be examined as Court witnesses and nothing prevents the petitioners to examine them as Court witnesses.
9. Having appreciated the rival submissions. I do not have the slightest hesitation in accepting the broad submission of Mr. Madhup that in case when it is found that evidence of a particular person appears to be essential for just decision of the case such witnesses are required to be examined. However, in the present case, the question is as to whether examination of the witnesses named in the charge-sheet is essential for just decision of the case. As stated earlier although the names of private witnesses to whom the petitioners prayed to examine as Court witnesses figured in the charge-sheet but it is equally true that the prosecution decided not to examine those witnesses as they have been gained over and such an application was filed before the trial Court earlier. In such circumstances, I am of the opinion that the accused-personss cannot compel the Court to examine the witnesses, who have been gained over to be examined as Court witnesses. I hasten to add that nothing prevents the accused-personss to examine them as defence witnesses. Here, in the present case the Sessions Judge has given such an option to the petitioners. Accordingly, I do not find any error in the order impugned on this count.
10. Mr. Madhup then contends that so far as three police witnesses are concerned, i.e., Sub-Inspector of Police, K.D. Kumar, Assistant Sub-Inspector of Police, Bhim Mahto and Dy. S.P. who had supervised the matter shall not be available for examination as they would not like to depose as defence witness.
11. Mr. Sinha, however, submits that the aforesaid three persons were never named as witnesses as they were never involved in the conduct of investigation of the case and as such Sessions Judge rightly rejected the prayer of the petitioners to examine the witnesses as Court witnesses under Section 311 of the Code.
12. From perusal of the order of the Sessions Judge it is evident that the aforesaid persons had played no role in investigation and as such their examination cannot be said to be essential for just decision of the case so as to invoke the power under Section 311 of the Code to so as to summon them as Court witnesses.
13. I do not find the approach of the Sessions Judge, while rejecting the application for examination of the witnesses to be erroneous. The Sessions Judge is right when he observed that accused-personss, if so advised, may examine the witnesses as defence witnesses.
14. In the result, I do not find any merit in this application. The application is, accordingly, dismissed.