PRADEEP KUMAR AGARWAL Vs. STATE

JUDGEMENT

(1.) Petitioner challenges order passed by learned Special Judge, Dhenkanal rejecting his prayer to issue summons to six persons, who, according to him, are material witnesses. Prayer was made in terms of Section 311 of the Code of Criminal Procedure, 1973 (in short, the 'Cr. P.C.'). Prayer appears to have been rejected on the ground that sufficient opportunity was granted to the petitioner. It is petitioner's case that adjournments were not earlier granted for the purpose of securing presence of the witnesses named in the petition dt. 30-6-1994.

(2.) Section 311, Cr. P.C. reads as follows:

(3.) As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Cr. P.C. to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the Section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be the "to be filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.