SABAR MAHABHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioners call in question legality of order dated 10 -5 -1994 passed by learned 2nd Additional Sessions Judge, Cuttack, accepting prayer made by the informant to issue summons to 5 persons who were not cited as witnesses in the charge -sheet. The learned Additional Sessions Judge accepted the prayer being of the view that though statements of these persons were not recorded Under Section 161 of the Code of Criminal Procedure, 1973 (in short, 'Code') -and were not examined by the Investigating Officer, they can be examined as witnesses in the case.

(2.) LEARNED counsel for petitioners submits that the application by informant was thoroughly mtsconcieved as it did not breathe a whisper about reasons for which examination of five persons as witnesses was relevant for the purpose of just - decision in the case. According to him, lecuna in the prosecution version was being attempted to be bridged by summoning these strangers to be examined as witnesses. Mr. S. 8. Choudhury appearing for opp. party No. 2 (informant) submits that prayer was made to examine these persons to further ends of justice, and learned Additional Sessions Judge was justified in accepting the prayer.

(3.) LIST of witnesses given by the police in the charge sheet is a matter of practice and not under any provision of law. Such a desirable practice, however, does not disable prosecution from examining any other witness. There a nothing in law that prevents the prosecution from producing, or the Court from examining, as a witness in the case, a person whose name has lot been included in the report made or whose statement has not been recorded or furnished. Sub -section (5) of Section 173 prescribes that where report is in respect of a case to which Section 170 of the Code applies, the police officer shall forward to the Magistrate along with the report the statements recorded under Sec 161 of all the persons whom the prosecution proposes to examine as its witnesses. 'All such evidence' as referred to in Section 231 does not mean only such evidence as is referable to Sub -section (3) of Section 173 of the Code.