STATE OF GUJARAT Vs. CHETAN HIMATLAL

JUDGEMENT

(1.) This is a revision application preferred by the State of Gujarat on being aggrieved by an order passed by the learned Additional Sessions Judge, Surendranagar, on 9.2.1995 below application Ex.47 in Sessions Case No.97 of 1993.

(2.) The facts of the case are that, the opponent is the accused in the Sessions Case, who has been charged for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The case of the prosecutrix is that the accused committed the offences punishable under Sections 363, 366 and 376 qua the prosecutrix-Dipti, who was under 16 years of age. For proving the age of the victim, the prosecution relied upon "birth certificate" issued by the school in which the prosecutrix had taken education. During cross-examination, Bhartiben, mother of the prosecutrix appears to have stated that birth of the prosecutrix was registered with Surendranagar Municipality. After the said witness, several other witnesses were examined by the prosecution and, ultimately, by tendering a Purshis (Ex.42) on the 17th December, 1994, the prosecution closed its evidence. It appears that, thereafter, statements of the accused under Section 313 of the Code of Criminal Procedure was recorded. The defence did not examine any witnesses and closed its evidence. The matter went to the stage of hearing of arguments. At that stage also, the prosecution concluded its arguments and then the defence started with its arguments. On the 12th January, 1995, arguments of the defence were heard at length and the matter was adjourned to the 19th January, 1995 when on the 13th January, 1995, an application (Ex.47) came to be tendered by the prosecution seeking indulgence of the Court to summon a witness conversant with birth registration from Surendranagar Nagarpalika as "an additional prosecution witness". The said application came to be rejected by the learned Additional Sessions Judge by passing the impugned order, after considering various decisions. The state is, therefore, aggrieved against the order and has come with this revision application.

(3.) Heard learned Additional Public Prosecutor, Mr. N.D. Gohil, for the revisioner-State. According to Mr. Gohil, the Court has unfettered and wide powers under Section 311 of the Code of Criminal Procedure to summon any witness at any time. He submitted that, at any point of time prior to the pronouncement of judgment, the powers can be exercised by a criminal Court. He submitted that there is no attempt on part of the prosecution to create an evidence. The evidence, if at all it is there, would be produced by a personnel from the Nagarpalika, which itself is a public body and the birth register itself is a public document maintained in ordinary course of its business. He, therefore, urged that the learned Additional Sessions Judge ought to have allowed the application and summoned the witness as prayed for. He urged that this Court may exercise revisional jurisdiction by allowing this revision application and setting aside the impugned order and by further directing the Sessions Court to summon and examine the witness.