MADAN LAL Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated November 6,1989, passed by the Munsif and Judicial Magistrate, First Class, Chittorgarh, by which the learned Magistrate allowed the application Under Section 311 Cr.P.C, filed by the Assistant Public Prosecutor and allowed the Assistant Public Prosecutor to produce the witnesses.

(2.) ACCUSED -petitioner is facing trial Under Section 4/9 the Opium Act in the Court of the Munsif and Judicial Magistrate, First Class, Chittorgarh. During the pendency of the trial, an application was moved by the learned Assistant Public Prosecutor for summoning the witnesses, viz., O.P. Puri, Durga Lal, Chaturbhuj and Chunni Lal. The learned Magistrate, by his order dated November 6,1989, allowed the application filed by the Assistant Public Prosecutor and directed the A.P.P. to produce the witnesses O.P. Puri, Chaturbhuj and Durga Lal himself on February 12,1990 and he may summon the witness Chunni Lal through the Court. It is against this order that the present petition Under Section 482 Cr.P.C. has been filed.

(3.) THE learned Magistrate, while deciding the application, held that it would be in the interest of justice to summon the witnesses and he, also, was of the opinion that the evidence of these witnesses was essential for just decision of the case. It is not in dispute that the powers Under Section 311 Cr.P.C. should not be used by the Court to fulfill the lacuna and latches of the prosecution, but if the Court comes to the conclusion that the examination of the witnesses is essential to the just decision of the case then the Court must call those witnesses. The examination of these witnesses is essential for the proper decision of the case and, therefore, in my opinion the learned lower Court has not committed any illegality in allowing the application filed by the Assistant Public Prosecutor and, also, in summoning the witnesses aforesaid. The statement of the accused Under Section 313 Cr.P.C. has not yet been recorded and he will have an opportunity to cross -examine these witnesses.