Santosha Nand vs State
1992 Latest Caselaw 146 Del

JUDGMENT

S.C. Jain, J.

(1) The facts giving rise to this revision petition, are that Santosha Nand petitioner herein along with others are facing trial in the court of the Additional Session Judge (SJ) at New Delhi for offences u/S.120B, 302, 307, 324 and 326 Ipc and u/S.4 and 5 of the Explosive Substances Act, 1908 allegedly for the murder of Shri L.N.Mishra, the then Railway Minister and two others. In support of its case, the prosecution has examined 150 witnesses and the prosecution evidence was closed by Shri B.L. Kalra, Special P.P.

(2) On 25.4.1986 an application u/S. 311 of the Code of Criminal Procedure was moved before the Additional S.J. concerned by the counsel for the accused Santosha Nand for summoning of 13 witnesses as court witnesses. Out of these 13 witnesses two witnesses namely A.K. Mishra and A.K.Thakkar are the persons who earlier made confessional statements but later on they were got discharged. They have not been cited as prosecution witnesses in the challan. Names of remaining 11 witnesses appear on the back of the challan (charge-sheet) who are not called by the prosecution to give evidence. The learned Addl S.J. declined the request of the accused and dismissed the application vide order dated 21.11.1986. Aggrieved this revision petition has been filed.

(3) The learned counsel for, the petitioner challenged the order passed by the Additional S.J. and argued that the learned Judge has not appreciated the legal proposition relevant to the question before him. The question before him was whether the accused should have the opportunity to prove its version and the case by cross-examining the witnesses, the counsel submitted. According to him, the learned Judge has applied his mind to wholly irrelevant consideration namely whether the witnesses were necessary for unfolding the prosecution case. Relying upon t

(4) There is no dispute about the legal proposition that the prosecutor has to be fair in the presentation of the prosecution case. He must not suppress or keep back from the court the evidence relevant to the determination of the guilt or innocence of the accused. He must present the complete picture and not one side of the picture and he should not be partial to the prosecution or to the accused and he has to be fair to both the sides in the presentation of the case. This view has been taken by the Division Bench of this court in Parbhu Dayal case 1986 (1) Crimes 3. However, it is entirely within the discretion of the counsel for the prosecution whether all the witnesses mentioned in the challan (charge sheet) should be called on behalf of the State or not. The prosecutor has the discretion as to what witnesses should be called for prosecution and the court will not interfere with that discretion unless it can be shown that the prosecutor has been influenced by some oblique motive.

(5) Section 311,Cr. P.C. consists of two parts : (1) giving the discretion to the court to examine any witness at any stage and (2) mandatory provision to compel the court to examine a witness if the evidence is essential for the just decision of the case. The object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defense has failed to produce some evidence which is necessary for the just and proper disposal of the case. The court examines this witness neither to help the prosecution nor the defense. This is a power given to the court which is entirely discretionery. The accused cannot compel the court to exercise its discretion at any stage of the trial. This power can be exercised even after the close of the prosecution evidence and close of the defense. Even when both the parties closed their cases, it is open to the court to summon any person as a witness if his evidence appears to it to be essential to the just decision of the case.

(6) While passing the impugned order the Addl S.J. has adopted a wrong approach and misinterpreted Section 311, Cr. P. C. which gives power to the court to summon and examine some persons as court witnesses in the interest of justice and for the proper decision of the case. It is manifestly the duty of the court to examine any witness whose evidence is essential for the just decision of the case. Whether that witness unfolds the prosecution version or not is immaterial. The learned Judge while discussing each and every witness sought to be examined as a court witness did not summon the same on the plea that he was not to unfold the prosecution story. It is not intended by this Section that the court should exercise his powers at the bidding of any person but the powers are given to prevent any danger or miscarriage of justice owing to some particular witness not having been called. If the court considers that it is essential for the just decision of the case that the witness should be summoned as a court witness the court should exercise its jurisdiction in that way. On this ground of wrong approach adopted by the learned Addl Sessions Judge, the impugned order passed by him on 21.8.86 cannot be sustained and I, therefore, set aside the same.

(7) Now, it is to be seen whether the request of the accused for summoning these persons as court witnesses is to be considered at this stage when the accused has not been examined u/S. 313, Cr. P.C. and the defense version has not yet come to light. The main reason for summoning these witnesses as court witnesses given by the accused is that during investigation prosecution has changed its earlier version and implicated these accused in further investigation by getting discharged the earlier suspect persons alleged to be involved in the offence. Unless and until the version of the accused persons comes to light in their statements u/S. 313, Cr. P.C. or after leading the defense evidence, the court cannot make up its mind to find out whether the statements of these witnesses would be essential for the just decision of the case. The accused cannot compel the court to exercise is jurisdiction u/S. 311 at any particular stage of the trial. In these circumstances, I hold that this application moved by the accused for calling witnesses u/S. 311, Cr. P.C. would be considered and decided after the examination of the accused persons u/S. 313, Cr. P.C. and examination of the defense witnesses if they choose to produce any. The court shall however keep in view whether the statements of these witnesses or any of them sought to be examined as court witness would be essential for just decision of the case. It would be entirely the discretion of the court whether to allow any of the persons to be examined as court witnesses or not. Needless to say that the discretion should be judicial and not arbitrary. This Criminal Revision Petition is disposed of accordingly. In para 26, the qualification starts from "If on the facts ......" and in paragraph 29, it commences from; "even though ......" It would be cruel, if I may say so, to read the sentence : "It appears difficult for me to comprehend the distinction which the courts have sought to make between the grant of interim injunction and permanent injunction" shorn of what follows thereafter. Any other approach would mutilate the thought process and present a picture with its contours totally distorted. It is for these reasons that 1 am inclined to hold that the observations made in the judgment lead the plaintiff nowhere. 8. I must, however, hasten to add that I do not decide this motion merely on the ground of delay, though in the present case, that in itself would be sufficient. There is strong prima facie case to show that the defendant has been in open concurrent trade since the year 1983 with business spread out in the State of Uttar Pradesh, a State of which the plaintiff claims to be its centre of activity. Moreover, there is nothing to show that because of the presence of the defendant, the business of the plaintiff has suffered or its sales have shown decline. Rather, the graph shows an upward trend. And, I must also pause to remark that though in the present case the plaintiff does attribute to the defendant an improper and sinister motive, a consideration which Lord Simonds thought out to be particularly called to attention [See : Office Cleaning Services vs. West minister Window General Cleaners (1945) 63 R.P.C. 39]. I am obliged to put this consideration completely aside, because from the material on the record, I cannot possibly return any such finding in favor of the plaintiff.

(9) It was argued on behalf of the defendant that during the period after the notice it had been expanding its business and had been lulled into a false sense of security and for that reason too grant of drastic relief as are now sought on interim basis deserved to be refused. I must confess, I do find the argument attractive.

(10) Balancing the matters as best as I can, it seems to me that, taking into the drastic nature of the relief sought, the need for the plaintiff to establish an improper and sinister motive, the defense of open and honest concurrent trading since 1983, and the inordinate unexplained delay on the part of plaintiff it is not appropriate to grant any interim relief.