1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application (APL) No. 399/2011 Govardhan Haribhau Dhole and others V/s. The State of Maharashtra through P.S.O. P.S. Yavatmal City, Yavatmal ---------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ---------------------------------------------------------------------------------------------------------------------- Mr. P. A. Rajurkar, Advocate for Applicant Mr. D. B. Yengal, APP for Respondent-State Coram: A.P. Bhangale, J Dated : 29th July 2011 1. Heard Mr. P. A. Rajurkar, learned counsel for the Applicant and Mr. D. B. Yengal, learned APP for the Respondent-State. 2. By means of this application under Section 482 read with 483 of the Code of Criminal Procedure, the applicants have prayed for exercising of inherent powers for quashing and setting aside the order passed by the learned Additional Sessions Judge, Yavatmal in Sessions Trial No. 39/2010 below application Exh. 158 on 19/07/2011. 3. It appears that on behalf of the accused facing murder trial, an application dated 19/07/2011 was made before the learned Sessions Judge, Yavatmal for issuance of summons to the District 2 Representative / Editor of daily marathi newspaper namely “Deshonnati” with reference to certain news as the applicants had to prove that the photograph of accused no. 1 was published in the news paper. The said application was rejected by the learned Additional Sessions Judge, Yavatmal on the ground that there was no description of witnesses and hence, there was no propriety to issue summons as the previous summons has returned unserved. 4. It is further grievance of the applicants that the learned trial Judge, had also deprived the applicants of an opportunity to further cross-examine the eye-witnesses by name Vikey Roi, Pinki Trivedi and the Investigating Officer Shri. Vijay Magar. The eye-witnesses were required to be further cross-examined in the interest of justice, but the learned trial Judge, granted permission only to recall the Investigating Officer Shri. Vijay Magar by an order dated 06/07/2011. 5. Earlier also, the applicants had approached this Court by Criminal Application No. 305/2011, which was disposed by an reasoned order dated 27/06/2011, which was in respect of certain documents sought to be produced on behalf of the defence, wherein this Court held that production of documents ought to have been allowed as contemplated under Section 294 of Code of Criminal Procedure and it was expected that the learned trial Judge may record the questions in evidence in respect of which permission was sought while recording 3 the evidence in the trial. It is just and proper to record evidence in question and answer form when Court may grant permission to put the questions or refuse permission by passing a short reasoned order in respect of objection if any in the course of recording of the evidence. It is then advantageous for the appellate Court also to appreciate the evidence better. 6. Now it is the grievance of the applicants that the applicant ought to have been allowed to question the eye-witnesses in their further cross-examination with reference to their previous statement recorded by the Investigating Officer Shri. Vijay Magar. The learned Advocate for the applicants submitted that, if the further cross- examination of the eye-witnesses is permitted, the applicants would cross-examine them with reference to their previous statements recorded by the Investigating Officer and, by this, the applicants- accused who were facing serious trial, may be able to bring on record omissions or contradictions or improvement as the case may be, which may enable the learned trial Judge to find out the truth and decide the case according to law. It is submitted that an opportunity to further cross-examine eye-witnesses namely Vikey Roi, Pinki Trivedi and the Investigating Officer Shri. Vijay Magar may, therefore be granted. 7. It is further grievance of the applicant that in view of 4 Section 311 of the Code of Criminal Procedure, in the absence of such permission or if no such opportunity is granted the applicants may suffer irreparably as they may be deprived of adducing necessary evidence which is essential for just decision of the case. Section 311 of Code of Criminal Procedure reads thus; 311. 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. The trial Court has power in the course of trial to summon any material witness or cross-examine any person in defence though not summoned as witness or to recall or to re-examine any person already examined when evidence of such witness appears essential for the just decision of the case. This provision must be read along with the provisions meant for conducting sessions trial in Chapter XVIII of Cr.P. Code. Under Section 230 of Cr.P.C. the trial Judge is expected to issue any process for compelling the attendance of any witness when a 5 date is fixed for prosecution evidence. Process for compelling the attendance of any witness may be issued upon the application by the prosecution. Sessions Judge, is under obligation to record all such evidence as may be produced in support of prosecution. The trial Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or he may recall any witness for further cross-examination. After completion of the evidence led on behalf of the prosecution, if the accused is not acquitted under Section 232 of Code of Criminal Procedure, the Sessions Judge is under obligation to call upon the accused to enter into his defence and to adduce any evidence which the accused may have in support of his defence. Thus, when the accused applies for issuance of any process for compelling the attendance of any witness such process is normally allowed unless the defence has intention to apply vexatiously or to cause delay or to defeat the ends of justice. Perusal of this provision indicates that the parties shall be allowed to lead their respective evidence by giving them full opportunity to do so. 8. Learned Advocate for the applicants made reference to ruling in case of Dnayndeo Pandurang Yadav and others V/s. State of Maharashtra reported in 2004(3) Mh.L.J. 309. Following the ruling in Mohanlal Shamji Soni V/s. Union of India reported in AIR 1991 SC 1346, the Apex Court had observed about the purpose 6 behind exercise of powers under Section 311 of Code of Criminal Procedure. The purpose is to discover the relevant facts or to obtain proper proof of relevant facts for arriving at the just decision of the case and the discretion must be used judicially and not capriciously or arbitrarily. The object of criminal trial is to discover the truth. 9. Thus, applying the principles stated above and looking to the impugned order it was neither just nor proper on the part of the learned trial Judge not to summon eye-witnesses for further cross- examination, particularly, when permission was granted to recall the Investigating Officer Shri. Vijay Magar. The accused, by cross- examination of eye-witnesses concerned, with reference to their statement before the Police or Investigating Officer, can bring on record inconsistencies, omissions or material improvements, if any, which are to be proved with the help of cross-examination of the Investigating Officer as is permissible according to law of evidence. When witnesses are summoned for further cross-examination then the questions, objections if any and the answers to the questions given by the witnesses be recorded in question-answer form which do help the appellate or revisional Court to appreciate the evidence as also conduct of witness concerned. That being so, the impugned order dated 06/07/2011 below Exh. 141 and 19/07/2011 below Exh. 158 are set aside. The 7 applicants-accused are allowed to prefer an appropriate application for to summon eye-witnesses namely Vikey Roi, Pinki Trivedi and the Investigating Officer Shri. Vijay Magar. The learned trial Judge, shall hear and consider the application according to law. Needless to state that, when further cross-examination is permitted, the prosecution shall be at liberty to apply for re-examination. The learned trial Judge is expected to conclude the sessions trial as early as possible. JUDGE Punde