KEWAL GUPTA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Shri Kewal Gupta, petitioner, approaches this Court through this revision petition and urges to set aside the order of judicial Magistrate, Ist Class (2), Nurpur, in Criminal Case No.92/2.87, decided on 27-9-1988, whereby the trial Judge allowed the application of the prosecution under S.311 of the Code of Criminal Procedure.

(2.) The facts, in brief, are that the petitioner is being prosecuted for offences under Ss.342/384/506 of the Indian Penal Code. After the framing of the charge, the Court proceeded to record the prosecution evidence. On 18-6-1988, the trial Court recorded the statement of the complainant, Shri Rakesh Kumar (P.W. 1). While recording the statement of this witness, names of Shri Kailash Chand, s/o Shri Jagat Ram, Shri Sundri s/o Shri Jai Chand and Shri Satish s/o Shri Tek Chand were introduced and it was stated that these persons saw the occurrence. On this revelation, the prosecution moved an application under S.311 of the Code of Criminal Procedure before the trial Court for allowing it to examine these persons as prosecution witnesses. This prayer was contested by the petitioner. However, after hearing the parties, the trial Judge allowed the prayer of the prosecution by the impugned order. The petitioner has a serious grievance against the same and assails it by this petition.

(3.) Shri Vijay Pandit, learned counsel appearing for the petitioner, contends that the names of these persons do not find mention in the list of witnesses appended with the chargesheet submitted before the trial Court by the prosecution under S. 173 of the Code of Criminal Procedure. Further, in case they were important witnesses, more so eye witnesses to the occurrence, the Investigating Officer should have taken care to record their statements under S.161 of the Code of Criminal Procedure. Therefore, the learned counsel urges that in view of the failure of the prosecution on both these counts, it is not legally permissible to bring them forward for the first time and examine as prosecution witnesses. In the alternative, even if they are considered to be necessary, the trial Court should have exercised this power after seeking corroboration of the statement of Rakesh Kumar (P.W. 1). Having failed to Act in this manner, it is contended that the trial Court acted in hot-haste in allowing this application which could otherwise be done, if so thought fit by the Court, at a later stage. It is also contended by the learned counsel for the petitioner that the power under S. 311 of the Code of Criminal Procedure is to be exercised to meet the ends of justice and not to enable the prosecution to fill up lacunae in its case and that something which cannot be done in view of prohibition under Ss.161 and 173 of the Code of Criminal Procedure, cannot be allowed to be done by exercise of this power under S.311 of the Code of Criminal Procedure. However, the learned counsel agrees that the power is wide enough but alleges that the same can be exercised in the interest of justice.