DAYANIDHI BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this criminal revision the petitioner, accused in a case Under Section 326 of the Indian Penal Code (I.P.C for short), has challenged the order passed by the learned Sub -Divisional Judicial Magistrate, Bhadrak, who on the petition of the prosecution permitted examination of two witnesses in exercise of his powers Under Section 311 of the Code of Criminal Procedure ('Code' for short).

(2.) ACCORDING to the prosecution case, P. W. 1 was assaulted by the petitioner on 12 -6 -1979 in presence of witnesses by means of a Bhala, which is a sharp cutting weapon, whereby, the former sustained a grievious injury The prosecution examined eight witnesses and closed its case on 28 -3 -1985. The statement of the petitioner Under Section 313 of the Code was recorded on 8 -4 -1985. Arguments were heard on 9 -5 -1985 and the case was posted for judgment to 18 -5 -1985. On 18 -5 -1985, the prosecution filed a petition to the effect that, two persons, namely, Mahendra Kumar Rout and Balaram Ojha were eye -witnesses to the occurrence While Balaram Ojha was cited in the charge -sheet as a witness, the name of Mahendra Kumar Rout was omitted. It was necessary to examine both the eye -witnesses and so, they should be summoned. After hearing both parties, the learned Court below came to hold, 'The evidence of the said two witnesses appears to this Court to be essential to the just decision of the case'. Accordingly, he directed issuance of summons to these two witnesses to appear in Court for the purpose of their examination by the prosecution.

(3.) THE sole point for consideration is, whether the evidence of Mahendra Kumar Rout and Balaram Ojha is essential to the just decision of the case, so that, they should be summoned for examination by the prosecution in exercise of powers Under Section 311 of the Code. Section 311 of the new Code corresponds to Section 540 of the old Code. In AIR 1968 S.C.178 Jamatraj Kewalji Govani v. Stateof Maharashtra. Hidayaiullah, J. (as His Lordship then was) spoke for the Court and interpreted the provisions of Section 540 of the old Code and Section 165 of the Evidence Act, and held that Section 540 gives a power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice requires. He further observed that Section 165 of the Evidence Act is complementary to the exercise of power Under Section 540 of the Code and these two sections, between them confer wide jurisdiction on the Judge to act in aid of justice. He also held : 'Section 540 is intended to be wide as the repeated use of the word 'any throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the Court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in Court although not summoned and (c) recall or re -examine a witness already examined The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly, There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states.'