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Gaurav Sabharwal v/s State of U.P. & Another

    Criminal Misc. Application No. 6143 of 2014

    Decided On, 27 February 2014

    At, High Court of Judicature at Allahabad


    For the Appellant: Gaurav Kakkar, Advocate. For the Respondents: -----------.

Judgment Text

Virendra Vikram Singh, J.

1. By way of moving present application under sections 482 Cr.P.C., order dated 25.1.2014 passed by the Additional District & Sessions Judge, Court No. 1, Jhansi in Sessions Trial No. 02 of 2012 arising out of Case Crime No. 819 of 2009, u/s 311 I.P.C., Police Station Shipari Bazar, District Jhansi, has been challenged. Heard learned Counsel for the applicant and learned A.G.A. for the State.

2. By the impugned order, the Trial Court has declined to summon the witnesses proposed by the accused, present applicant to summon the witne

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sses mentioned in the charge-sheet which were left to be examined by the prosecution in its evidence.

3. Brief facts need be mentioned.

4. In the sessions trial, mentioned above, after the entire prosecution evidence and the statement of the accused u/s 313 Cr.P.C., the case was fixed for defence evidence when the application was moved on behalf of the accused, present applicant that the witnesses Km. Preeti Paremar, Km. Tripti, Ramesh Gujral, Km. Rupali, Km. Jafri and Bala Prasad be summoned as Court witnesses. This application by the impugned order has been rejected.

5. It has been argued on behalf of the applicant that the witnesses which were proposed to be examined by the applicant are the prosecution witnesses who have deposed the truth during investigation that the deceased in fact committed suicide while his request for immediate appointment was not attended by the applicant. It has been argued that during investigation, the fact has come that in the statement of the witnesses proposed to be examined that the deceased infact committed suicide, hence, the Court was obliged to summon these witnesses and the rejection of application is nothing but the abuse of process, hence, the order in question to be quashed.

6. The public prosecutor while producing the prosecution evidence has not produced the witnesses sought to be examined by the applicant. Infact there appears evidence of dying declaration of the deceased and other evidence which suggest that the applicant infact was set ablaze the deceased. While opposing the application of the applicant, the public prosecutor objected to the application that these witnesses are not required to be examined for prosecution nor they are necessary for the just decision of the case. The Court by passing the impugned order though has rejected the application of the applicant but has kept the right reserved with it to summoned these witnesses if during arguments it finds that examination of these witnesses are necessary for the just decision of the case.

7. The prosecution in any Sessions trial is not bound to examine all the witnesses mentioned in the charge-sheet. Section 231(1) Cr.P.C. lays down that "on the dates so fixed, the Judge shall proceed to take all such evidence as produced in support of the prosecution." Thus, it is evident that the prosecutor is not bound to examine all the witnesses mentioned in the charge-sheet. Court is supposed to record the statement of only such witnesses as may be produced by the prosecution. Thus, the prosecution is nowhere obliged to examine all the prosecution witnesses mentioned in the charge-sheet nor is he debarred from examining a witness which is not mentioned in the charge-sheet. Thus, the examination of any witness for the prosecution is the sole discretion of the public prosecutor and the Court cannot compel any witness to be examined by the prosecution.

8. Now comes to the fact to be examined whether the Court was obliged to summon the witness mentioned in the charge-sheet at the instance of the accused simply because these witnesses during investigation have supported the case of the applicant. While passing the order for examining any witness, u/s 311 Cr.P.C., the consideration for the Court is that whether the examination of such witness is necessary for the just decision of the case?. The Court is not suppose to examine any witness to fill up the lacuna of the prosecution nor it is supposed to examine any evidence which favour the accused. The Apex Court in the judgment of Natasa Singh v. CBI (State), Criminal Appeal No. 709 of 2013, decided on 8.5.2013, it has been relied upon in the subsequent judgment of Rajaram Prasad Yadav Vs. State of Bihar and Another, , in Para 11 of the judgment, the Apex Court has held as follows:--

11. The object underlying section 311 of the Code is that there may, not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only from the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In section 311 the significant expression that occurs is at any stage of inquiry or trial or other proceeding under this Code.

9. Thus, it is evident that an application u/s 311 Cr.P.C. cannot be allowed simply to the advantage of the accused or that it favours the accused. Thus the Trial Court in no case was obliged nor was supposed to allow the application as it was moved on behalf of the applicant.

10. Having considered the facts and circumstances of the case, the Court does not find any abuse of process of the Court in the impugned order. The application lacks merit and is hereby dismissed.