The power of the court to summon any person as a witness at any stage of any inquiry, trial, or other proceeding under the Code should be exercised judiciously and only where the court thinks that the evidence is necessary for a just decision of the case.

ARIJIT PASAYAT, J.

( 1 ) PETITIONERS call in question legality of order dated 13-12-1995, passed by learned Additional Sessions Judge, Khurda, accepting prayer made by the Public Prosecutor to issue summons to three persons who were not cited as witnesses in the charge-sheet. The learned Additional Sessions Judge accepted the prayer being of the view that a person whose statement has not been recorded under Section 161 of the Code of Criminal Procedure, 1973, (in short, 'the Code'), and has not been examined by the Investigating Officer, can be examined as witness if circumstances so warrant.

( 2 ) LEARNED counsel for petitioners submits that the application was thoroughly misconceived as it did not breathe a whisper about reasons for which examination of three persons as witnesses was relevant for the purpose of just decision in the case. According to him, lacuna in the prosecution version was being attempted to be bridged by summoning these strangers to be examined as witnesses. Learned counsel for State submits that prayer was made to examine these persons to further ends of justice, and learned Additional Sessions Judge, was justified in accepting the prayer.

( 3 ) EXAMINATION of witnesses cannot be confined to those whose statements were recorded under Section 161 of the Code. Sections 231, 242 and 244 of the Code deal with "evidence for prosecution" in different types of trials. First relates to trial before Court of Session, while two relate to trial of warrant cases by Magistrates. In the case at hand, the trial is before the Court of Session. Section 231 of the Code enjoins on the Judge to take all evidence that may be produced in support of the prosecution. Language of sub-Section (1) of the Section is purposely wide so as to enable the prosecutor to produce all such evidence as may be produced in support of the prosecution. The words "all such evidence" in the sub-Section cannot be read as meaning only such evidence as relates to those persons who have been examined by the Police. Even if a person is not cited in the charge-sheet and/or was not examined during investigation and/or his statement was not recorded during investigation, his examination at a belated stage would not be wholly illegal, though there may be cases where it would cause prejudice to the accused. If the facts disclosed in evidence or questions put in cross-examination necessitate bringing on record the evidence of a person, Court should not hesitate in summoning him as a prosecution witness, or even as a Court-witness in terms of Section 311 of the Code. While considering scope and ambit of Section 231 of the Code, Section 311 has to be kept in view.

( 4 ) LIST of witnesses given by the police in the charge-sheet is a matter of practice and not under any provision of law. Such a desirable practice, however, does not disable prosecution from examining any other witness. There is nothing in law that prevents the prosecution from producing, or the Court from examining, as a witness in the case, a person whose name has not been included in the report made or whose statement has not been recorded or furnished. Sub-Section (5) of Section 173 prescribes that where report is in respect of a case to which Section 170 of the Code applies, the police officer shall forward to the magistrate, along with the report, the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. 'all such evidence' as referred to in Section 231 does not mean only such evidence as is referable to sub-Section (5) of Section 173 of the Code. A cautious approach is, however, necessary. Bringing in of such evidence should be permitted if proper and suitable explanation is offered as to why it had not suffered earlier.

( 5 ) SECTION 311 of the Code gives power to the Court to summon material witness, or examine person present. The power to examine witnesses is not unfettered. If the Court is of the opinion that any matter