Point of law: Murder case – Summoning of witnesses – Permissible even if case is reserved for judgment as court has power to use Section 311 Cr.PC

ORDER :

1. Petitioners who are accused nos.1 to 3 in S.C.No.239/2017 pending on the file of I Addl. Sessions Judge, Kalaburagi, registered for the offences punishable under Sections 302, 201 read with 34 IPC, have challenged the order dated 06.01.2021 passed by the said Court exercising its power under Section 311 Cr.PC, principally on the ground that the learned Sessions Judge had no jurisdiction to exercise the power under Section 311 Cr.PC since the case was already posted for judgment.

2. Brief facts of the case are, on the basis of the complaint filed by one Shivaraj S.Malipatil, Narona Police, Alland Circle, Kalaburagi, have registered a case in Crime No.102/2017 against unknown persons for the offences punishable under Sections 302, 201 IPC and subsequently, charge sheet has been filed in the said case against the petitioners herein for the offences punishable under Sections 302, 201 read with 34 IPC. After the charge sheet was filed, the accused are tried for the alleged offences before the Court of I Addl. Sessions Judge, Kalaburagi, in S.C.No.239/2017. After completion of recording the evidence in the said case, the learned Sessions Judge had heard the arguments on both sides and thereafter posted the matter for judgment. At that stage, the impugned order dated 06.01.2021 has been passed by the learned Sessions Judge suo motu exercising his power under Section 311 Cr.PC.

3. Learned Counsel for the petitioners submits that since the case is already posted for judgment, the learned Sessions Judge had no jurisdiction to exercise the power under Section 311 Cr.PC. The said power can be exercised only at the stage of trial. He submits that the learned Sessions Judge having heard the arguments of both parties, thereafter cannot invoke the power under Section 311 Cr.PC because that would amount to filling up the lacuna in the case of the prosecution, and therefore, he prays to allow the petition.

4. Learned Counsel for the petitioners has relied on the judgment of the High Court of Kerala in the case of K.SAJEENDRAN VS SECRETARY, THALAKULATHUR GRAM PANCHAYAT -2004 CRL.L.J. 555. In paragraphs 5, 6 & 8 of the said judgment, it has been held as under:

"5. In this regard, it is worthwhile to quote Section 311 Cr.PC.

"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."

(Emphasis supplied)

Therefore this power can be exercised only "at any stage of any inquiry, trial or other proceedings".

Inquiry, trial or other proceedings are mentioned in the Section in the alternative. Admittedly, this was a trial case. When the Section mentions alternatively "other proceedings" as distinct from inquiry and trial, "other proceedings" shall be "proceedings" other than trial. Admittedly, there was a trial and witnesses have been examined and the case has been posted for judgment.

6. Section 353(1) of the Code of Criminal Procedure speaks about judgment.

"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."

Therefore, the judgment comes on termination of the trial. It can immediately be after the termination of the trial or subsequent to the date on which the case is posted for judgment. Therefore, when the case is posted for judgment, the trial stands termina