ANIRUDH PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners have come up to this Court in revision against an order dated the 16th November, 1973, passed by the learned Additional Sessions Judge, 3rd Court, Patna, in Sessions Trial No. 50 of 1972 refusing the prayer of the petitioners to examine six persons either as prosecution witnesses or as Court witnesses.

(2.) SHORT facts for disposal of this application are as follows. These three petitioners, along with two others, are being tried in the aforesaid sessions case for offences punishable under Sections 302 and 302/149 of the Indian Penal Code, besides some minor offences, for causing the death of one Birendra Singh, a student of the Anugrah Narayan Singh College, Barh, near the gate of the College premises. The prosecution, according to the petitioners, has examined five eye -witnesses, who, according to them, either belong to village Berhna or in some way or the other are connected with the said village and, as such, all of them are said to be highly interested witnesses. According to the petitioners, during the course of trial, P.W. 9 stated that the reason for the alleged occurrence was a dispute between a student of Sahri which is overwhelmingly populated by Rajputs and a student of Berhna which is overwhelmingly populated by Bhumihar Brahmins. According to the petitioners' case, as set up in the application and as also urged by the learned counsel for the petitioners, P.W. 3 Ram Ashis Das, a peon of the College, aforesaid, in his evidence, had stated "College -Gate Ke Sate Pachhim Staff -Room Hai. Staff -Room Me do Khirkian Hai. College gate Ke Samne Dakhin Men Pan Ke Dukan Hai. Larke Tatha Staff Ke Log Pan Ke Dukan Se Pan Khate Hai." Again a portion of the evidence of the Investigating Officer (P.W. 15) Shri Ganpati Choudhary has been quoted as follows : "Dinank 10.12.1969 Main Purab Barh College Pahucha. Maine Hohan Per Praadhyapak Mahesh Prasad Singh, Raghunath Prasad Singh, Sita Saran Sharma, Lakshmi Narain Singh, Sabhi Praadhyapak Uparyukta college me Hain Ka Beyan Liya. Uparyukta Pradhyapak Men Kishi Ne Mujhe Nahin Kaha Ke Unlogon Ne Ghatna Ko Nahin Dekha Hai". The further case of the petitioners is that they had reliably come to know that the Investigating Officer had examined during the course of the investigation several Professors of the College concerned, including Krishnanandan Prasad, the owner of the shop, referred to above. The petitioners assert as they had asserted before the learned Additional Sessions Judge that they had reasonable apprehension that these were material and independent witnesses who were deliberately being suppressed by the prosecution to be examined as prosecution witnesses in the sessions trial. In the aforesaid circumstances, the petitioners filed an application under Section 540 of the Code of Criminal Procedure (hereinafter referred to as the Code) before the learned Additional Sessions Judge praying that either the prosecution be directed to call those persons as prosecution witnesses or the Court might summon them as Court witnesses. The learned Additional Sessions Judge, by his impugned order, has rejected the prayer of the petitioners at this stage observing that Section 540 of the Code imposes on the Court the duty of summoning witnesses who would not otherwise be brought before the Court and such a discretionary power is to be invoked only for the ends of justice and is to be exercised with caution and circumspection and such a power is not meant to be exercised in course of prosecution evidence. If the circumstances so demanded, provisions of Section 540 of the Code could be invoked after the evidence - both for the prosecution and the defence - had been closed at the sessions trial.

(3.) LEARNED counsel for the petitioners, in support of his contention that, at any stage the defence can bring it to the notice of the Court such material as to justify an action under Section 540 of the Code and that, in that event, the Court will be bound to exercise such a discretion at that very stage, has relied upon a number of decisions. The two decisions of this Court relied upon by the learned counsel are Hari Gope v. Emperor (AIR 1947 Patna 354) and Kumar Jibeshwar Singh v. The State, (1971 Pat LJR 285). Both these decisions are similar in nature insofar as at the appellate stage the advantage was given to the accused -appellant on account of the failure of the prosecutor to examine some material witnesses by deliberately suppressing them and on account of the failure of the trial Court to exercise its discretion under Section 540 of the Code. To the same effect is a decision of the Supreme Court in Kirpal Singh v. State of Uttar Pradesh (AIR 1965 SC 712) : (1965 (1) Cri LJ 638) on which learned counsel for the petitioners has strongly relied. In the case of Kirpal Singh in the Supreme Court, their Lordships were laying down the principles on which a Magistrate was bound in duty to examine all such witnesses as may be produced by the prosecutor as witnesses as also his duty to see as to whether in the interest of justice it was necessary to record the evidence of other witnesses. In that connection, their Lordships laid down that a Magistrate failing to examine witnesses to the actual commission of the offence because they had not been produced, without considering whether it was necessary in the interest of justice to examine such witness failed in the discharge of his duties. The principle laid down by the Supreme Court in the above mentioned case is unexceptionable, as I have already held above, at any appropriate stage when the trial Judge is satisfied that there has been any deliberate and motivated suppression of any material witness he will certainly take resort to his powers under Section 540 of the Code. But it is very difficult to cull out the principles of law as enunciated by the learned counsel for the petitioners from the case of Kirpal Singh. The case is not the authority for the proposition that irrespective of the satisfaction of the trial Judge it is open to the prosecuted party to bring to the notice of the Court the omission of any material witness to be examined and that, in such cases, the Court, is bound to exercise its discretion at that stage. Learned counsel also placed reliance on the case of In re Venugopal Mudaliar (AIR 1952 Madras 509). This case is merely an authority for the proposition that, where the prosecution thinks fit not to examine an important and material witness and gives him up, it is the duty of the Court to call him and examine him as a Court witness in the case and there is no restriction as to the stage at which a witness may be called by a Court. In my opinion, this decision rather reinforces the view that I have taken above, namely, that the stage at which the trial Judge would take resort to the provisions of Section 540 of the Code and the fitness and appropriateness of such a stage must be in the discretion of the trial Court. It is difficult for me sitting in exercise of my revisional jurisdiction to scan the evidence and to find out as to whether or not this is an appropriate stage at which the learned Additional Sessions Judge must be directed to exercise his discretion under Section 540 of the Code.