The court emphasized the essentiality of examining the Investigating Officer in a criminal case and the wide discretion of the court to summon or recall witnesses under Section 311 of Cr.P.C. and Section 165 of the Indian Evidence Act.

As per Hon'ble Shri Fakhruddin, J. :-

1. Heard.

2. This petition has been filed under section 482 Cr.P.C. against the revisional order dated 30-5-2002 passed in Criminal Revision No. 93 of 2002 by the VIth Additional Sessions Judge, Ambikapur whereby the order dated 11-4¬-2002 passed by the C.J.M. Ambikapur, Distt. Sarguja, in case No. 1479 of97 has been affirmed.

3. It is submitted that charges were framed against the applicant on 18-8¬1998 by the Magistrate, prosecution evidence was declared to be closed and thereafter matter was posted on 2-3-2002 for examination of the accused. On 2¬-3-2002 the accused persons were examined U/S 313 Cr.P.C. and the matter was fixed for arguments on 8-3-2002. It is further submitted that on the said date when the arguments were to be heard, the complainant filed an application U/S 311 of Cr.P.C. for calling the investigating off1cer and the applicant thereto has filed reply. After hearing the parties, the trial Court has allowed the said application holding that the examination of the Investigating Officer was necessary for the adjudication of the matter.

4. In support of his contention, Shri Sinha, counsel for the petitioner has relied on a decision of High Court of Madhya Pradesh Saodhan S/o Mitthulal Vs. Statel which has been considered by the Court below. It is contended by the counsel for the applicant that it is the prosecution and the accused who have right. The complainant has no such right. The application in this case has not been made by a total stranger but by the complainant. In this connection, the law laid down in the case of R. Rathinam Vs. State by DSP, District Crime Branch. Madurai District. Madurai2 needs to be seen. In that case, the bail was granted to certain persons. A group of practicing Advocates presented petitions before Chief Justice of the High Court seeking initiation of suo motu proceedings for cancellation of bail. The Chief Justice placed the petitions before a Division bench. The Division Bench refused to exercise the suo motu powers on the ground that the petition submitted by the Advocates was not maintainable. It was held that the frame of sub-section (2) of Section 439 indicates that it is a power conferred or. the courts mentioned therein. It was held that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves by a petition. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the said power could also be exercised suo motu by the High Court. It was held that, therefore, any member of the public, whether he belongs to any particular profession or otherwise could move the High Court to remind it of the need to exercise its power suo motu. It was held that there was no barrier either in Section 439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. It was held that if the High Court considered that there was no need to cancel the bail then it could dismiss the petition. It was held that it was always open to "the High Court to cancel the bail if it felt that there were sufficient enough reasons for doing so.

5. Miss. Sharmila Singhai, Dy. Govt. Advocate for the State submits that so far as examination/recall of witnesses is concerned, section 311 of Cr.P.C. gives a power to the Court to summon a material witness or to examine a person present in the Court or to recall a witness already examined. She further submits that this power is found in section 165 of the Indian Evidence Act. In support of her contention, she relied on a decision of the Supreme Court Jamatraj Vs. State of Maharashtra3 in which in 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