Steps taken by prosecution for examination of additional witnesses at the fag end if trial not a good practice.

The above Criminal Original Petition has been filed by the State against the order dated 14.11.2003 made in Crl.M.P.No.381 of 2003 in C.C.No.40 of 1998 by the Court of Principal Special Judge for C.B.I. Cases, Chennai.

2. The case of the petitioner is that a charge sheet was filed against the respondents/accused for offences under Section 120B r/w 409, 477A IPC and under Sections 13(2) r/w 13(1)(c) of the Prevention of Corruption Act, 1988 on the allegations that the respondents while working as Catering Superintendents in VLR, Central Station, Chennai had entered into a criminal conspiracy during May, 1993 and in pursuance thereof, had misappropriated or otherwise converted for their own use the provisions of stock of Southern Railway, which were entrusted to them or were under their domination, to the tune of Rs.1,11,808.05.

3. The further case of the petitioner is that so far the prosecution has examined its witnesses; that the prosecution then filed a petition under Section 311 Cr.P.C. for examination of four additional witnesses, namely S.Gopal, S.Thouladeen, S.F.Raziudeen and K.S.Somanathan to prove the entrustment of provisions to the respondents; that these witnesses are the authors of the records to be proved through them; that since the four witnesses are material witnesses and are available, the prosecution had sought the orders of the trial Court to examine them as additional witnesses; that the documents sought to be deposed by these witnesses are already in the court as part of the documents filed along with the charge sheet and therefore, no prejudice would be caused to the respondents/accused; that the learned Special Judge dismissed the said petition on 14.11.2003 on ground that the prosecution filed the petition at the fag end of the trial; that the witnesses sought to be examined were not examined during investigation by the Investigating Officer and the reason for not examining the witnesses during investigation was given by the Public Prosecutor and not by the Investigating Officer, since the Investigating Officer might have satisfied himself with the other witnesses cited in the list of witnesses to prove the entrustment. On such averments, he would pray for the relief extracted supra.

4. In the counter affidavit filed by the first respondent he would submit that so far in the case six witnesses were examined and the Investigating Officer’s examination is going on and at this stage the prosecution has filed the above Crl.R.C. for the purpose of extending the trial and rebuilding the case; that among the four witnesses cited by the prosecution, one Gopal is already dead and the other two witnesses namely S.Thouladeenand S.F.Razindeen are already retired from service and their whereabouts are not known to the department and to procure them for the purpose of examination would cause delay in proceedings and the only one witness by name K.S.somanathan alone is working; that the above witnesses have not given statement under Section161 of Cr.P.C. at the time when the investigation was on; that at the lapse of 10 years everything in their mind would be faded away and they cannot recollect anything at this fag end of trial due to senility; that moreover, the prosecution wants to bring them as witness for the purpose of filling up the lacuna caused during trial which will definitely prejudice the interest of the respondents/accused; that it also will not amount to be a fair trial on the part of the prosecution.

5. Heard the learned Special Public Prosecutor for C.B.I. appearing for the petitioner and the learned counsel appearing for the respondent as well and the materials placed on record have also been perused.

6. During arguments the learned Government Advocate appearing on behalf of the petitioner would cite a judgment reported in 2002 SCC (Cri)230 (Shailendra Kumar vs. State of Bihar and others) wherein it is held:

“Section 311 Cr.P.C. empowers the court to summon material witnesses though not summon