ORDER [ENTITY], J.
1. Shri [ENTITY] through Additional Public Prosecutor submitted an application Under [SECTION] of the [ACT] in short as '[ACT]' hereinafter) to summon the witnesses relating to link evidence and medical evidence. However, by the impugned order dated 18-3-2002, the learned Additional District and Sessions Judge, Bhilwara rejected the application. Hence this petition.
2. The brief facts of the case are that charges Under [SECTION] and [SECTION] [ACT] were read over and explained to the accused [ENTITY], who allegedly committed dowry death by pouring kerosine on her wife deceased [ENTITY] on 6th July, 1997. To prove the charges, prosecution exmined 18 witnesses. P.W. 15 [ENTITY], Investigating Officer was examined on 28th May, 2001. Statement of the accused was recorded Under [SECTION] [ACT] and three witnesses were examined in defence up to 14-2-2002. The case was posted for final arguments on 19-2-2002. Thereafter, the complainant submited an application (A/174) on 25-2-2002 to summon the doctor.
3. Heard learned counsel for the complainant-petitioner, the Public Prosecutor and the respondent No. 2.
4. It was argued by the learned counsel for the complainant-petitioner that the trial Court has not properly exercised jurisdiction vested in it. The summoning of the link evidence was material for just decision of the case, and therefore, it was mandatory Under [SECTION] [ACT] to summon the witnesses relating to link evidence. It cannot be said that by production of evidence, the prosecution is trying to fill up any lacuna. The prosecution might be negligent but, for doing complete and substantial justice and for just decision of the case. The learned counsel relied on the following decision of the Apex Court in support of his argument :
(1) [PRECEDENT] [PRECEDENT].
5. The learned Public Prosecutor supported the argument of the complainant-petitioner.
6. Controverting the argument of the complainant-petitioner, the learned counsel for the accused Shri [ENTITY] relying on the decision in [ENTITY] v. Krishna Kumar, reported in 1997 [CASE NUMBER] argued that present petition by the complainant is not maintainable as being filed by a private person and the complainant has no locus standi to prefer the instant petition. Secondly, it. was argued that P.W. 15 [ENTITY] was examined on 28th May, 2003 but, the application for summoning link evidence was presented after a delay of nine months. Thirdly, the so called witnesses to be summoned viz. [ENTITY], [ENTITY] and [ENTITY] were not examined during investigation Under [SECTION] [ACT] Fourthly, there is no fault in the impugned order. Lastly it was argued that exercising the revisional jurisdiction, this Court should be slow to interfere in discretionary orders. The trial Court was perfectly within its jurisdiction and by a well-reasoned order, it has rejected the application.
7. I have gone through the impugned order and the relevant record.
8. First of all, the objection relating to locus-standi has to be decided.
9. In [PRECEDENT], the Hon'ble Supreme Court has held as under :
"To pursue an offender in the event of commission of an offence is to subserve a social need-Society cannot afford to have a criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus-the doctrine of locus-standi is totally foreign to criminal jurisprudence."
10. In the present case, the application signed by the complainant was submitted by Additional Public Prosecutor under his signature and therefore, it cannot be said that it was presented by the complainant only and not by the Additional Public Prosecutor. Before this Court, the State has not preferred revision but, supported the petitioner. The petitioner is father of the deceased and an aggrieved person. In laws of deceased are arrayed as accused in the case. In view of the judgment of the Apex Court, the objection of the learned counsel for the accused-petitioner relating to locus-standi is liable to be rejected and is hereby rejected.
11. It is necessary to reproduce [SECTION] [ACT], which is as follows : "[SECTION]. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case".
12. This section is divisible in two parts. In the first part, discretion is given to the Court and enables it, at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence was already been recorded; on the other, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also justice from the point of view of orderly society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether this evidence the Court thinks necessary in the facts and circumstances of the particular case before it. If this resulting in what is sometimes thought to be the "filling of lacunae" as contended by the learned counsel for the petitioner, that is purely a subsidiary factor and cannot be taken into consideration.
13. The Courts are meant to do justice and not for only disposing the case and to declare who won the case. Counsel seek only for their client's success, but the Judge must watch that justice triumphs. In the present case, the application has been filed after the closure of the evidence of the prosecution as well as of the defence. The learned trial Court has dealt the application with a view to find fault in conducting the case by the prosecution and has not adverted to the point with a view to find fault in conducting the case, by the prosecution and has not adverted to the point with a view whether the production of link evidence was necessary for the just decision of the case or not?
14. In [PRECEDENT], application Under [SECTION] [ACT] was filed after the examination of evidence or prosecution as well as of defence and closure of arguments of defence, but before arguments on behalf of the prosecution.
15. In [PRECEDENT] (supra) application Under [SECTION] [ACT] was filed when the defence highlighted the laches of prosecution during trial arguments.
16. [SECTION] [ACT] confers jurisdiction on the Judge to act in aid of justice. Though, the application has been filed delayed, but the production and summoning of link evidence (Ex. P/6) is necessary for the just decision of the case. Therefore, the person, who was in-charge of [ENTITY] i.e. [ENTITY], carrier [ENTITY] and the witness [ENTITY] of the office of Superintendent of Police, all are necessary for just decision of the case to prove the link evidence relating to charge against the accused. At this stage, the application ought not to have been rejected on the ground of delay. The documents to be produced, cannot be called forged one by any stretch of imagination. At this stage, lacuna even it remains after examination of witnesses relating to link evidence in the statement of P.W. 15 [ENTITY] cannot be considered. Therefore, the evidence of these witnesses are necessary for the just decision of the case. The learned trial Court passed the impugned order ignoring the principles of 'ex debito justiciae'. The reasons given by it are legally impermissible and not based on sound exercise of power. It cannot be said that the rights of the acused will be prejudiced or jeopardized in any manner.
17. There is no bar that a witness, whose statement Under [SECTION] [ACT] had not been recorded the time of investigation, cannot be allowed to examine Under [SECTION] [ACT] Under [SECTION] [ACT], the Court is to take all evidence produced in support of the prosecution. Therefore, where the statement of witness is not recorded Under [SECTION] [ACT], but the prosecution with the prior permission of the Court produce such a witness, the accused cannot be said to have taken by the surprise. When a witness examined in Court, whose statement has not been recorded at the time of investigation Under [SECTION] [ACT], the evidentiary value to be attached to the evidence of such witness has to be looked into and if, it is found that prejudice has been caused to the accused, then the evidence of such witness may not be acted upon. Therefore, the argument of the learned counsel for the accused-non-petitioner does not find favour in this regard also. The contention of the learned counsel for the accused, that only those witnesses can be examined, whose statements have been recorded by the police Under [SECTION] [ACT] and find mention the list of witnesses submitted with the challan Under [SECTION] [ACT], if accepted, will render the provisions of [SECTION] [ACT]. These provisions namely, [SECTION], [SECTION] and [SECTION] [ACT] have got different object, scope and operate in different spheres.
18. As far as the limitation in exercise of jurisdiction by this Court Under [SECTION] [ACT] is concerned, this Court can exercise its jurisdiction to correct mis-carriage of justice. But, whether or not, there is justification for the exercise of the discretionary jurisdiction, would depend upon the facts and circumstances of each case. The controlling power of the High Court Under [SECTION] [ACT] being discretionary, it is required to be exercised only in the interest of justice having regard to all the facts and circumstances of each particular case and not in a mechanical manner. While exercising jurisdiction Under [SECTION] [ACT], the power of the Court are not controlled by [SECTION] [ACT] and to prevent the abuse of the process and to advance the cause of justice, the powers can be exercised. The order of learned trial Court has not advanced the cause of justice, though the prosecution was negligent and the application Under [SECTION] was presented with delay, but before commencement of final arguments.
19. The reliance placed by the learned counsel for the accused-petitioner in [ENTITY]'s case ([PRECEDENT] (supra) is based on the decision given in [PRECEDENT], which is distinguishable on facts as given in para No. 4 of the judgment. In that case, the Magistrate refused to commit the case to the Court of Sessions as the trial was at its completion stage. A revision was filed before the Sessions Judge by [ENTITY], an informant in one of the other three cases. The Sessions Judge, Champaran disposed the revision petition and directed the learned Magistrate to commit the accused persons for trial accordingly. In revision before the High Court, the ground urged by the appellants was that the Sessions Judge had no jurisdiction to pass an order for commitment as there was no order of discharge by the Magistrate. The revisions were dismissed by holding that there was conflict of authority on the question whether a Sessions Judge can, in the absence of an express order of discharge, direct commitment of a. case to it while the trial is proceeding before a Magistrate.
20. Therefore, the impugned order is liable to be set aside and is hereby set aside. The application Under [SECTION] [ACT] filed by the prosecution is hereby allowed and the learned trial Court is directed to allow production of link evidence by summoning them as per law. The parties are directed to appear before the learned trial Court on 28th May, 2003.