N. NARAYANA RAO Vs. STATE OF A.P.

JUDGEMENT

(1.) Sri Padmanabha Reddy, the learned counsel for the petitioner, contends that the learned Special Judge did not feel it necessary to examine the witnesses 1, 2, 4, 5, 6, 7 and 10 on the petition filed by the Public Prosecutor for summoning the additional witnesses that their evidence is necessary for him to enable him to give a just decision. He further contends that when the learned Special Judge did not feel so, he is not justified under law to permit the prosecution to examine the above mentioned witnesses at the belated stage i.e., after 65 witnesses were examined and when the investigating officer deposed in part as 66th witness. He also contends that the above mentioned witnesses were not cited in the charge-sheet nor they were examined during the course of investigation and there are no prior statements as to what they would depose. He further contends that the prosecution wanted to examine the above mentioned witnesses in order to fill up the gaps in the prosecution evidence and also to nullify the material that is brought on record by the defence during the course of cross-examination. He, therefore, contends that the discretion exercised by the learned Special Judge under Section 311 Cr. P.C., is not judicious and is contrary to the established principles of law.

(2.) I think the these contentions are well-founded. It is true that Section 311 Cr.P.C., gives the power to the Court to summon additional witnesses. It reads as follows:-

(3.) In the case on hand, the learned Special Judge did not say that the evidence of the witness for the examination of whom he passed orders, is essential for the just decision of the case and hence he has not reported to the second clause of Section 311. He appears to have invoked the first clause. He has given certain reasons for allowing the petition filed by the prosecution. I am satisfied that the reasons given by the learned Special Judge are highly unsatisfactory and unacceptable. From the Appendix of evidence filed along with the charge-sheet it is clear that the prosecution did not cite these witnesses at all, as they are not material witnesses. These witnesses were not at all examined during the course of the investigation and this is an undisputed fact. It is only when the witnesses were examined and some material which was favourable to the defence was brought on record in the cross-examination of the witnesses, the prosecution felt it necessary to examine these witnesses. Obviously the prosecution wants to nullify the favourable material brought on record in the cross-examination and to filed up the gaps in the prosecution evidence. Law does not permit the prosecution to adopt such a course. As the intention of the prosecution in coming up with this petition at this belated stage is not to promote justice, but only to fill up the gaps in the evidence and to nullify the favourable material brought on record, the lower Court acted contrary to what was laid down in Section 311. Hence I have no hesitation to hold that the impugned order is vitiated with illegality. I, therefore, set aside the order passed by the learned Special Judge and allow the revision case.