T UMESH MALLI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) ). PETITIONERS are facing prosecution before the learned Magistrate at c. C. No. 287 of 1992 for the offences under Sections 326 and 506 read with Section 34 of the IPC. The alleged incident took place in the year 1990 as the crime number would indicate, namely Crime No. 251 of 1990. 10 years after the incident and 8 years after the charge-sheet came to be filed, petitioners availed of the benefit of the decision of the supreme Court in Raj Deo Sharma v State of Bihar, by an order of the learned Magistrate dated 20-5-2000. Thereafter, but before the case could be terminated, the prosecution came up with a request to summon certain witnesses under Section 311 of the Cr. P. C. The learned Magistrate has declined the said request on two grounds, one of which is that the request of the prosecution for invoking Section 311 of the Cr. P. C. is a belated one. When the above said order of declining to invoke Section 311 of the cr. P. C. was taken up in revision before the learned Sessions Judge, the learned Sessions Judge, by the impugned order, has set aside that order and has directed reconsideration of the application under Section 311 of the Cr. P. C.

(2.) BY a misunderstanding of the time-limit referred to in paragraph 15 of the clarificatory order in Raj Deo Sharma's case, supra, the learned magistrate has wrongly taken that invoking Section 311 has to be within a specified time. Paragraph 15 dealt with an altogether separate aspect. The observation of the Supreme Court in the clarificatory order, so far as invoking of Section 311 of the Cr. P. C. is concerned, is to be found in paragraph 9, which reads thus: "9. We may observe that the power of the Court as envisaged in section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the Seven-Judge bench in Abdul Rehman Antulay v R. S. Nayak, nor in Kartar singh v State of Punjab, such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment, it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case, it is the duty of the Court to summon and examine or recall and re-examine any such person". Thus, for the purpose of taking a decision on the prosecution's request to invoke Section 311 of the Cr. P. C. , there is no time-limit, and, as observed by the Supreme Court in paragraph 9 of the clarificatory judgment, it is the conclusion of the learned Magistrate as to whether the evidence of a witness sought to be summoned under Section 311 of the Cr. P. C. appears to be essential to the just decision of the case that is the criterion, and not at what point of time the said request for invoking Section 311 of the Cr. P. C. came from the prosecution. To this extent, the learned Sessions Judge is right in pointing out that the learned Magistrate has wrongly referred to paragraph 15 of the clarificatory order in Raj Deo Sharma's case, supra, to assume any time-limit for the prosecution to invoke Section 311 of the Cr. P. C.

(3.) THE assumption of time-limit for invoking Section 311 of the Cr. P. C. was not the only ground on which the learned Magistrate had declined to permit the prosecution to summon certain witnesses.