SANTOSHANAND Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) The facts giving rise to this revision petition, are that Santosha Nand petitioner herein along with others are facing trial in the court of the Additional Session Judge (SJ) at New Delhi for offences u/S. 120B, 302, 307, 324 and 326 IPC and u/S. 4 and 5 of the Explosive Substances Act, 1908 allegedly for the murder of Shri L.N.Mishra, the then Railway Minister and two others. In support of its case, the prosecution has examined 150 witnesses and the prosecution evidence was closed by Shri B.L. Kalra, Special P.P.

(2.) On 25.4.1986 an application u/S. 311 of the Code of Criminal Procedure was moved before the Additional S.J. concerned by the counsel for the accused Santosha Nand for summoning of 13 witnesses as court witnesses. Out of these 13 witnesses two witnesses namely A.K. Mishra and A.K.Thakkar are the persons who earlier made confessional statements but later on they were got discharged. They have not been cited as prosecution witnesses in the challan. Names of remaining 11 witnesses appear on the back of the challan (charge-sheet) who are not called by the prosecution to give evidence. The learned Addl S.J. declined the request of the accused and dismissed the application vide order dated 21.11.1986. Aggrieved this revision petition has been filed.

(3.) The learned counsel for, the petitioner challenged the order passed by the Additional S.J. and argued that the learned Judge has not appreciated the legal proposition relevant to the question before him. The question before him was whether the accused should have the opportunity to prove its version and the case by cross-examining the witnesses, the counsel submitted. According to him, the learned Judge has applied his mind to wholly irrelevant consideration namely whether the witnesses were necessary for unfolding the prosecution case. Relying upon the decision of Joseph Francis Olvia (1965) 49 Criminal Appeals 298 being a decisionf the Court of Criminal Appeal in England and Adel Mohammed El Dubbah-AIR (32) 1945 PC. 42 (From the. Supreme Court of Palestine) the learned counsel submitted that a witness whose name appears on the indictment (charge sheet in India) is capable of belief. It is the duty of the prosecution to call him even though the evidence that he is going to give is inconsistent with the case sought to be proved. If the prosecution does not perform its duty for whatever reasons, honest, oblique, mistaken, the court must step in and see that no injustice is done to the accused. According to him, hampering the accused in his defence is miscarriage of justice. Relying upon a decision of Allahabad High Court reported in 1983 ALLAHABAD WC 1002, the learned counsel submitted that the powers u/S.311,Cr. P.C. are to be exercised judicially and not arbitrarily. The High Court may not compel the Sessions Judge to exercise its power in one manner or another but exercising overall supervisory powers, it is the duty of the High Court in the exercise of the inherent powers to properly guide the Sessions Judge to exercise his power u/S. 311, Cr. P.C. According to the learned counsel, he does not press the examination of Amin Haq Khan as a court witness but the remaining ten persons whom the defence requires as court witnesses have said something in their statements u/S. 161, Cr. P.C, which on cross-examination may yield worth of circumstantial and other evidence tending to support the earlier version of the prosecution case and negative the subsequent version.