PARAMJEET SINGH Vs. STATE

JUDGEMENT

(1.) I have heard learned counsel for the petitioner and perused the order of the trial Court namely Additional Chief Judicial Magistrate, Anoopgarh dated 1-11- 2002 whereby he has allowed the application filed by the complainant Inderjeet Singh under Section 311 of the Code of Criminal Procedure for production of various files pertaining to revenue proceedings. It appears that the second respondent Inderjeet Singh filed a complaint in the Court of Judicial Magistrate, Anoopgarh complaining that the accused-petitioner Paramjeet Singh has forged the Will of deceased-Raj endra Singh. The complaint was sent for investigation to S.H.O. Police Station, Anoopgarh under Section 156(3) of the Code of Criminal Procedure. After usual investigation the police filed a charge-sheet against the accused-petitioner along with three other accused persons for offence under Sections 419, 420, 467, 468, 471, 474, 477 and 120- B, IPC. During the trial the prosecution evidence was closed on 1-10-2002. On the same day the statement of the accused person was also recorded and the case was posted for final hearing on 18-10-2002. On 18-10-2002 the learned Magistrate heard the arguments and adjourned the case for 23-10-2002 for pronouncement of the judgment. Judgment was not pronounced on the said date and the case was adjourned for 28-10-2002. On 26-10-2002 the complainant filed an application under Section 311 of the Code of Criminal Procedure stating inter alia that the deceased-Rajendra Singh had not executed any Will. However, the accused-Paramjeet Singh claiming a Will in his favour approached to the Tehsildar (Colo- nisation) for mutation of the land in his name. In a revenue suit Parana]eet Singh claimed ownership of the land on the basis of the Will in his favour. He also filed an application under Section 13(2) of the Code of Civil Procedure for placing the Will on record. The complainant placed certified copies of all those documents. A prayer was made for summoning of the record and the official witnesses. The application was con- tested by the accused-petitioner on the ground that the complainant cannot be per- mitted to fill up the lacuna in the prosecu- tion case. The learned Magistrate thoroughly examined the controversy in depth and de- tail and arrived at the conclusion that sum- moning of the record was essential for the just decision of the case.

(2.) Mr. N. L. Joshi learned counsel ap- pearing for the petitioner has vehemently argued that a serious miscarriage of justice has been caused to the accused-petitioner inasmuch as the complainant has been given a free hand to plug in the holes by summoning the record of the revenue Courts. The learned counsel has placed re- liance on a decision of the Apex Court in Mir Mohd. Omar v. State of West Bengal, reported in AIR 1989 SC 1785 : (1989 Cri LJ 2070) wherein the Apex Court disap- proved the directions of the High Court giv- ing liberty to the prosecution to recall the witnesses and ordering deletion of the en- tire examination under Section 313 of the Code of Criminal Procedure. He has also relied upon two decisions of this Court be- ing Prabhu Rarn v. State of Rajasthan, re- ported in 1997 Cri LR (Raj) 777 and Kanhaiya Lai v. State, reported in 1987 Raj Cri C 345. In both the cases the Court dis- approved of permitting to produce evidence to the prosecution at the fag end of the trial. There can be no dispute that the proposi- tion of law is laid down in the cases cited by the learned counsel.

(3.) The powers under Section 311 of the Code of Criminal Procedure are discretion- ary and the same has to be exercised with great care and caution in either way. No general rule can be made as to when and under what circumstances discretion to summon the witnesses ought to be exer- cised. The paramount consideration is do- ing justice to the case. Thus, if a Court comes to the conclusion that for the just decision of the case a permission to produce certain evidence is essential, merely because argu- ments have been heard in a case at one stage and it is posted for the judgment is not a ground to limit the scope of passing the or- der under Section 311, as the Court can pass such order at any stage. Before invoking the powers under Section 311 the Judge has to take into account the circumstances and decide whether the course of examining wit- nesses after the entire case is closed would be so irregular that it may cause injustice to the accused. The mere fact that the evi- dence is directed to be taken after the en- tire case is over is not in itself excess of pow- ers under Section 311. The provisions of Section 311 cannot be interpreted so as to limit powers of the Court to examine the witnesses only before the conclusion of the arguments. In the instant case the learned Magistrate for good and valid reasons has directed for production of the documents by summoning of the witnesses under Section 311 of the Code of Criminal Procedure con- sidering that it was essential to enable him to give just decision of the case. Simply be- cause the provision has been resorted to at a later stage, it cannot be said that its pur- pose is to fill up the lacuna. No case is made out to invoke the inherent powers of this Court under Section 482 of the Code of Criminal Procedure to interfere with the dis- cretionary order of the trial Court based on good and valid reasons.