Harbhajan Lal Nayyar vs State
1990 Latest Caselaw 449 Del

JUDGMENT

V.B. Bansal, J.

(1) Harbhajan Lal Nayyar petitioner has filed this petition thereby challenging the order dated 3rd February, 1990 of Additional Chief Metropolitan Magistrate, Delhi thereby allowing the prosecution to examine 24 witnesses.

(2) Briefly stated the facts leading to the filing of this petition are that a challan was filed in the concerned court against the petitioner for trial under Ss. 419, 420, 468 and 471 Indian Penal Code in Fir No. 1296 dated 22nd October, 1974 P.S. Daryaganj. The challan was filed in court on 5th April, 1977. vide order dated 22nd March 1979 of an Addl. Chief Metropolitan Magistrate, Delhi charges under Ss. 419, 420, 468 and 471 Indian Penal Code were framed against the petitioner to which he pleaded not guilty. The recording of the evidence was commenced on 7th April, 1979. Prosecution was able to examine 11 witnesses in all and after giving numerous opportunities to the prosecution the prosecution evidence was finally closed on 26th July, 1988. Statement of the accused was recorded on the same day and thereafter the defense evidence was closed on 11th July, 1989. The case was adjourned to 4th August, 1989 final arguments and thereafter on a joint request by the learned counsel for the parties it was adjourned to 25th August, 1989. It is on this date that an application under Sec. 311 of the Code of Criminal Procedure (for short the Code) was moved by the State praying for permission to examine 24 witnesses named in the said application. The ground for permission mentioned therein are that "these witnesses have remained somehow un-examined" and "testimony of these witnesses is essential for the just decision of the case".

(3) This application was strongly opposed by the petitioner who has, inter alia, pleaded that it was a much belated application moved by the prosecution to fill up the lacuna in the prosecution story after the defense of the accused was disclosed and after the closing of the defense evidence. It was also pleaded that the State has not given details as to how the recording of the evidence was delayed. This application has, however, been allowed by learned Addl. Chief Metropolitan Magistrate view impugned order.

(4) I have heard learned counsel for the petitioner Shri Bikramjit Nayyar and learned Standing Counsel for the State Shri B.D. Batra. I have also perused the records of the case.

(5) Learned counsel for the petitioner has submitted that not only numerous opportunities were given to the prosecution for recording of evidence but indulgence was also shown to the prosecution by learned trial court inasmuch as adjournments were given even after giving a final opportunity for the production of the evidence. He has also submitted that ho detailed reasons are mentioned in the application or in the impugned order and it is just a very vague application moved with the only purpose of filling up the lacunae in the prosecution story. A perusal of the record indicates that the recording of the evidence started on 7th April, 1979 and the evidence hid been closed on 26th July, 1988. It is, thus, apparent that more than nine years were taken by the prosecution and during this period as against 38 witnesses cited in the challan only I have been examined. Sec. 311 of the Code gives power to the court to summon material witnesses or examine persons present in court. There is a discretion vested in the court to examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined but a duty is cast on the court to summon, examine or recall and re-examine any person if his evidence appears to be essential to the just decision of the case. In the instant case the learned trial court has not exercised the discretion of its own for the summoning of the witnesses on the ground that their evidence is necessary for the just decision of the case. The said discretion in fact has been exercised on a request by State. It is, however, pertinent to note that the application is bereft of the details and it does not indicate as to how, in what manner the recording of evidence of some or all the witnesses is necessary for the just decision of the case. It appears that learned counsel appearing for the State had not put forwarded these details before the learned trial court during arguments as the impugned order does not indicate as to how, in what manner and to what extent the evidence of the witnesses is necessary for the just decision of the case. It is the cardinal principle of criminal jurisprudence that in order to prove its case the prosecution has to prove the allegations constituting offence so as to hold a person guilt of the offence. In case there is some doubt its benefit his to go to the accused and not to the prosecution. Similarly, State cannot claim any privilege of being permitted to adduce evidence at any time without making out a proper case for the exercise of the discretion in its favor by court.

(6) Learned Standing Counsel appearing for the State has not been able to point out anything from the impugned order or application as to how the statements of these witnesses are essential for the just decision of the case. I am not unmindful of the fact that a discretion is vested in the court to examine any witness, at any stage, may be even after conclusion of the arguments if the evidence of such a witness is necessary for the just decision of the case. However, in the instant case no such case is made out and in these circumstances I have no hesitation in coming to the conclusion that learned trial court has not exercised the jurisdiction in accordance with law in allowing the application of the prosecution for production of the additional evidence.

(7) As a result the revision petition is allowed. The impugned order stands set outside. The petitioner would appear before the trial court on 15th November, 1990. Records be sent back immediately.