The discretionary power of the court to summon any person under S.311 of the Code of Criminal Procedure is wide, and the court shall summon any person if their evidence appears to be essential to the just decision of the case.

1. The petitioner is aggrieved by the order of the trial Magistrate issuing summons to the Public Analyst at the fag end of the trial. He is directed to appear with documents for showing the date of analysis of the sample. This petition under S.482 of the Code of Criminal Procedure (for short the Code') is to quash the aforesaid order.

2. The petitioner is facing a charge for an offence under the Prevention of Food Adulteration Act, 1954. After the close of the evidence of the prosecution, and after questioning the accused under S.313 of the Code the trial Magistrate posed the case for judgment. But instead of pronouncing judgment on that day the learned Magistrate passed an order for issuing summons to the Public Analyst. The Magistrate has stated in his order that on going through the report of the Public Analyst it appeared to him that for a just decision of the case the Public Analyst should be summoned as a court witness for ascertaining the date of analysis.

3. The petitioner challenges the order on the main ground that the attempt is to fill up a lacuna in the prosecution evidence, The learned counsel for the petitioner contends that even if the material sought to be produced is a vital record having great relevance in deciding the guilt of the accused, re-opening of the case for affording an opportunity for the said purpose would result in miscarriage of justice. The said contention has been advanced on the strength of the observation of a learned single judge in Chandran v. State of Kerala (1985 KLT 452). The learned single judge observed that "recalling and re-examining a witness like the investigating officer for production and proof of a vital record having great relevance in deciding the guilt of the accused and that too after conclusion of the evidence cannot be said to be essential for the just decision of the case. A reading of the decision shows that the said observation is made with reference to the latter part of S.311 of the Code.

4. S.311 of the Code confers power on the court to summon any person at any stage of any inquiry or trial. The second part of the Section is mandatory in tone that the court shall summon any person "if his evidence appears to it to be essential to the just decision of the case". The Section consists of two limbs. In the first limb the power is discretionary. But the phraseology used in the section indicates the wide ambit for exercise of the discretion. The profuse use of the term "any" in the section and the manner in which that word is used are indicative of the legislative intent to widen the scope of discretion of the court. "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.."

(emphasis supplied)

The Supreme Court in Jamatraj Kewalji Govani v. State of Maharashtra (AIR 1968 SC 178) bad interpreted that the employment of the word 'any' in the section is clearly indicative of the width of the powers of the court in that sphere. Hidayatullah, J. (as be then was) who delivered the judgment in Govan's case has observed that S.540 (the said section corresponds to S.311 of the Code) is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. A useful portion of the decision for this context can be extracted below: The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. As the section stands, there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limi