IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20029 of 2008 JAVED AKHTAR & ANR Versus STATE OF BIHAR ----------- 3. 22.07.2008. The petitioners being aggrieved by and dissatisfied with the order of the 1st Additional Sessions Judge, Gaya dated 1.5.2008 whereby the petition filed on behalf of the accused petitioners for issuing Dusti Summons to the Investigating Officer of the case, Sub- Inspector, Triloki Mandal has been rejected. A Criminal case being Civil Lines P.S. Case No.114 of 2005 was instituted under Sections 147, 148,149,302 and 307 of the Indian Penal Code. The trial of the case was bifurcated and two sets of accused persons are facing Trial No. 11 of 2007 and 12 of 2007. The petitioners who are the accused in the aforesaid case had raised a defence that they were not present at the place of occurrence when the occurrence took place and they were at Bhagalpur at the time of occurrence thus raising a plea of alibi. The petitioners filed an application before the Chief Judicial Magistrate, Gaya raising the plea of alibi. The matter was referred to the D.I.G. and S.P., Gaya. The D.I.G., Magadh Range, Gaya issued letter dated 3.1.2006 and the Superintendent of Police, Gaya issued letter dated 5.1.2006 directing the Investigating Officer to make specific investigation with respect to absence of the petitioners from the place of the occurrence on the date specified. The plea taken by the petitioners was that they were at Bhagalpur in the Licenced Excise Shop on the date of the occurrence where a government raid was - 2 - conducted in the shop and the petitioners were found present there. These facts have been brought on record by the Investigating Officer Triloki Mandal by filing a supplementary case diary. During the trial, the petitioners had filed an application before the Ist Additional Sessions Judge, Gaya praying therein that Dasti Summons may be issued to them so that those witnesses who were examined under Section 161 of the Code of Criminal Procedure by the Investigating Officer Triloki Mandal may be examined as defence witness. As a result of the issuance of Dasti Summon the defence witnesses were in fact examined who have said to have deposed that the petitioners were present at Bhagalpur on the date on which the occurrence took place. It has also been stated that amongst the defence witnesses there were some government employees who have supported defence of the petitioners. It has been alleged that the prosecution has deliberately withheld Triloki Mandal and have not summoned him to be examined as a prosecution witness in order to suppress the real facts so far as the petitioners are concerned. As stated earlier that there are two trials with respect to same occurrence. One of the accused is facing trial in Sessions Trial No. 12 of 2007 had also moved this Court challenging the order of the Ist Additional Sessions judge, Gaya by which they had prayed to call for the supplementary case diary and summon the Investigating Officer Triloki Mandal as a witness, which was rejected by the order dated 4.3.2008 passed in Cr.Misc.No.40793 of 2007. The Court below while rejecting the application of the - 3 - petitioner has referred to Section 172(2) (3) of the Code of Criminal Procedure and stated that Section 172 does not contemplate summoning of a case diary for the purpose of assisting the accused persons to use if for his benefit and has further observed that the defence under Section 233(3) of the Code of Criminal Procedure has examined nine witnesses who have supported the defence case, and as such, the petitioners accused have no right to summon the case diary and demand that Triloki Mandal author of the case diary should be examined on behalf of defence. The Hon‟ble Mr. Justice Anwar Ahmad has rejected the application filed on behalf of the co-accused Rashid Akhtar by referring to Section 172 of the Code of Criminal procedure and has held in view of provisions of Section 172 of the Code of Criminal Procedure, “the accused petitioners are not entitled to call for the supplementary case diary and for that purpose to summon the S.I . of Police, Sri Triloki Mandal to give evidence as a defence witness”. The aforesaid decision of the Learned Single Judge is distinguishable since in that case the calling of supplementary case diary and the examination of S.I. Shri Triloki Mandal was tagged together. In the view, I am taking Sri Triloki Mandal may be examined a defence witness and it is only where, he, as a witness requires case diary for the purpose of refreshing his memory, that the court will call for the supplementary case diary, if the copy of the same in the record of the case is not found to be sufficient. I may also refer to Section 233(1)(3) of the Code of - 4 - Criminal Procedure provides is as follows: Entering upon defence: (1) where the accused is not acquitted under Section 232 or shall be called upon to enter on his defence and adduce any offence he may have in support thereof.(2)If the accused puts in any written statement, the judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the judge shall issue such process unless he consists, for reasons to be recorded, that such application should be refused on the ground it which is made for the purpose of vexation or delay or for defeating the ends of justice.” Section 233(3) states that an application for compelling attendance of the witnesses is to be rejected only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The court below while referring Section 233(3) of the Code of Criminal Procedure has not given any reasons or findings that the petitioners have in order to delay the proceedings filed the present vexatious petition. The court having allowed the petitioners to serve Dasti Summon and examine those witnesses who were examined under Section 161 of the Code of Criminal Procedure by Triloki Mandal has in fact in part allowed the petitioners to enter in their defence and to examine witnesses in their defence who were also examined by Triloki Mandal. This being undisputed fact the court could not have refused the petitioners‟ prayer to allow summoning of issue on Sri Triloki Mandal to be examined as a defence witnesses. I - 5 - agree in part with the order of the Hon‟ble Mr. Justice Anwar Ahmad when he has stated that the petitioner do not have a right under Section 173(3) to call for the case diary. Sub Section (3) of Section 172 clearly states that the accused or his agents are not entitled to see the diary. However, it also provides that the police officer can see the diary for the purpose of refreshing his memory. Therefore, in this case, the court below ought to have allowed the petitioners to examine Sri Triloki Mandal as a defence witness and only if Sri Triloki Mandal requires the case diary to refresh his memory the case diary would be relevant. It would be relevant also to examine the provisions under Section 311 of the Code of Criminal procedure. Power to summon material witness or examine person present.:- “This Section enables the court at any stage of any enquiry, trial or other proceeding under the Code, to summon any person as witness, or to 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 object of this Section is obviously to enable the court to arrive at the truth or otherwise of the facts under investigation by summoning and examining witnesses. This being the main object of the Section there can not be reasonable ground for not allowing defence witnesses to be examined. The Section consists of two parts: The first part of the Section gives discretionary power by saying that the court may - 6 - summon any one as a witness. The second part of the Section is an obligation on the court to summon or examine or recall or re-examine by using the word “shall”. The Court may examine any witnesses to come to the just decision of the case. The question then would arise that what stage can the court call to examine witnesses. It would be relevant to refer to the case reported in 1991 S.C. page 1346( Mohanlal Shamji Soni –Vs- Union of India).The facts of the case were that the evidence of the parties were closed, and the arguments were advanced on behalf of the defence, when the prosecution filed two applications under section 311 requesting the court(a) to recall the seizure list witnesses and(b) for summoning other witnesses. The trial court rejected the applications. The High Court allowed the application and thereafter the accused appellants moved the Supreme Court in this matter. The Supreme Court has held that, “the very usage of the words of such as „any Court‟ „at any stage‟ „of any‟ enquiry, trial or other proceedings, „any person‟ and „any such person‟ clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretion any power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. “The second part of Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the “just - 7 - decision of the case.” After discussion of several judgments of the Supreme Court on the subject matter, the judgment of the High Court was upheld allowing the prosecution to recall the witnesses and to examine to other witnesses. The case aforementioned in fact covers both the questions that is, that the witnesses may be called or may be re-examined any stage of the trial, and also that the object of the Court is to come to a „just decision in the case‟. The petitioners in this case have prayed that they may be permitted to examine the author of the supplementary case diary i.e., Sri Triloki Mandal to support the evidence that they have led in their defence. In my opinion, the court ought to have allowed the petition under Section 311 of the Code of Criminal procedure. As a result, the order dated 1.5.2008 is quashed and this application is allowed to the extent mentioned above. U.K. A.F.R. (Sheema Ali Khan,J)