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2004 (2) Crimes 543
Sikkim High Court
N. S. Singh, J.
Shri Prem Subba—Petitioner
versus
State of Sikkim—Respondent
Criminal Appeal No. 19 of 2003
Decided on 8-12-2003
Counsel for the parties:
For the Petitioner:Shri K.T. Bhutia, Advocate.
For the Respondent: Shri N.B. Khati-wada, Public Prosecutor assisted
by Shri J.B. Pradhan, Addl. Public Prosecutor.
Important Point
Where the court finds that examination of a witness is necessary for the just decision of case and permits prosecution to examine such a witness, order can not be held illegal merely because that witness had not been examined by police during investigation.
Headnote:Criminal Procedure Code, 1973 — Section 311 — Court has power to examine a witness — Ist part of provision is discretionary — Second part mandatory enables Court to take any of steps described in Ist part if new evidence of witness appeared to be essential to the just decision of the case — Object is to arrive at truth — Application of prosecution and by the victim during trial of petitioner accused for offence u/s. 307 IPC to examine a witness who could not be recorded during investi-gation — Application allowed by trial Court — Revision — Trial Court found examination of witness necessary for a just decision of the case & that no prejudice would be caused to accused petitioner who will get an opportunity to cross examine the witness — No case made out to justify interference. (Para 5 to 9)
Result: Revision dismissed.
JUDGMENT
Singh, J.— The order dated 12th August 2003 passed by the learned Sessions Judge (S & W): Namchi in Cri-minal Case No. 7 of 2003 is the subject matter under challenge in this revision petition.
2. The facts of the case, in a short compass, leading to the filing of this revision petition are as follows:—
The petitioner who is the accused person in connection with a Criminal Case No. 7 of 2003 stood trial for offence punishable under Section 307 of the Indian Penal Code before the Court below and the related charge has been framed against the accused- petitioner for the offence punishable under Section 307. As the accused-petitioner did not plead guilty, and claimed for trial: the trial Court started examination of as many as prosecution witnesses and, later on, the trial Court below fixed date for examination of the Investigating Officer (I.O.) and, in the mean time, the prosecution filed an application on 12th August 2003 for examination of a witness, namely, Shri Pem Tshering Bhutia, son of Shri Chadar Bhutia, resident of Siribadam, West Sikkim by stating that the said Pem Tshering Bhutia is a material witness who could not be examined during the investigation of the case and, as such an opportunity be given to the prosecution to examine the said witness for proper adjudication of the case. The learned trial Court allowed the petition thus affording an opportunity to the prosecution to produce the said witness and the I.O. of the case on the next date for examination vide impugned order dated 12th August 2003. Being dissatisfied with the impugned order dated 12th August 2003, the accused petitioner preferred/ filed this revision petition. The accused petitioner questioned the validity of the impugned order dated 12th August 2003 with the following grounds as highlighted in the revision petition which is quoted below:-
“(a) For that the impugned order is bad in law as well as facts of the case.
(b) For that the impugned order is against the spirit and letter of Section 311 of the Code of Criminal Procedure, 1973.
(c) For that it is settled law that the object of the provisions of Section 311 as a whole is to do justice not only from the point of view of the accused and the prosecution, but also from the point of view of the orderly society.
(d) For that it is settled law that under Section 311 Courts examine evidence neither to help the prosecution nor to help the accused and further it is done neither to fill up
any gaps in the prosecution evidence nor to give any
unfair advantage against the accused.
(e) For it is settled law that the discretionary power is to be exercised judicially for the ends of justice and not to fulfill the grievances of either prosecution or the accused.
(f) For that the impugned order does not indicate whether discretion is exercised or mandate of Section 311 is followed.
(g) For that the Ld. Trial Judge failed to appreciate the facts of the case, which negate the exercise of discretionary power in the present case.
(h) For that there was no application of the I.O. of the case for examination of the so-called witness who happens to be from same village of the defacto complainant.
(i) For that Ld. Trial Judge ought to have considered the evidence of the defacto complainant given in the Court as P.W. 10 before allowing the belated application of the Ld. Public Prosecutor based on the application of the defacto complainant.
(j) For that Ld. Trial judge failed to appreciate that one of the grounds raised by the defense to oppose the application was that there is every likelihood of procurement of got-up witness.
(k) For that the facts and circum-stances of the case the evidence of the defacto complainant crystal clearly prove that the so-called witness is a got up witness and was not present at the alleged place of occurrence.
(l) For that the grounds of the objection given by the Ld/ Defence Counsel ought to have been considered in the light of the facts and circum-stances of the
