THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 2090 of 2009 Date: 31.12.2009 Between: B. Ranganayakulu. .. Petitioner/Petitioner/A5 And The State of A.P., through Special Public Prosecutor for CBI, High Court of A.P., Hyderabad. .. Respondent/Respondent/Complainant. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 2090 of 2009 Order: This revision is directed against the orders dated 24.11.2009 passed in Crl.M.P. No. 412 of 2009 in S.C. No. 178 of 2009 by the learned Sessions Judge, Anantapur, allowing the petition filed by the petitioner herein and others and issuing summons to the then Mandal Executive Magistrate Sri Thirupal Setty to examine him as a defence witness. The brief facts of the case are as follows. The petitioner herein along with others filed an application under Section 311 Cr.P.C stating that Sri John Manohar, the then Inspector of Police, II Town Police Station, Anantapur laid information before the Mandal Executive Magistrate, Anantapur, on 24.01.2005 requesting him to promulgate orders under Section 144 Cr.P.C to control law and order situation, resulted consequent to the murder of Paritala Ravindra at about 3.00 PM on the same day by unknown offenders in the premises of Telugu Desam Party Office, Anantapur. Basing on the said information, the Mandal Executive Magistrate, Anantapur promulgated orders under Section 144 Cr.P.C. on 24.01.2005. The further case of the petitioner is that the FIR was registered in the murder case of Paritala Ravindra at about 6.00 PM or 10.00 PM by the Inspector of Police on the basis of the report given by Sri Kondanna (PW.2) and that the Inspector of Police could not have laid information before the Mandal Executive Magistrate, Anantapur without registering a case in connection with the murder and in the above circumstances summoning of Mandal Executive Magistrate, Anantapur, Sri Thirupal Setty as a court witness is essential to ascertain the time of promulgating orders under Section 144 Cr.P.C. On behalf of the State, counter was filed. The only contention of the State was that the witness should be examined as a defence witness and not as court witness. The lower Court framed only one point as to whether the Mandal Executive Magistrate can be summoned to be examined as a Court witness? The learned Sessions Judge allowed the petition and ordered to issue summons to the then Mandal Executive Magistrate Sri Thirupal Setty to be examined as a defence witness. Challenging the same, this revision has been filed. Learned counsel for the petitioner submitted that the Court has wide powers to examine any witness as a court witness. It is further submitted that the very purpose of summoning the then Mandal Executive Magistrate is to elicit truth from him and if he is examined as a defence witness, the petitioner may not have any opportunity to cross-examine the said witness in detail and thereby the petitioner and other accused may loose their valuable right of cross-examining the said witness. In support of his contention, he relied on the decisions reported in S.R.S. Yadav v. State of M.P.[1], Balaprasanna v. State rep. by its Inspector of Police[2], Nira @ Niranjan Jena v. State of Orissa[3], Sunil Kumar Sabharwal v. Mrs. Neelam Sabharwal and others[4], Sumer Chand @ Sumer Nath v. Sandhuran Rani and another[5], and Mukhtar Ali v. Judge, Family Court, Allahabad and another[6]. Learned Special Public Prosecutor for CBI submits that now the case is at the stage of examining the accused under Section 313 Cr.P.C. and therefore the petitioner and other accused have an opportunity to adduce the evidence and that it is on their petition the then Mandal Executive Magistrate is being summoned, and therefore, there is no irregularity or illegality in the order passed by the learned Sessions Judge in treating the witness as a defence witness. Section 311 Cr.P.C. is as follows. S.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. A reading of Section 311 Cr.P.C. makes it clear that the Court has ample power to summon any witness and examine him at any stage of inquiry or trial. The only condition is that if the Court comes to a conclusion that examination or re-examination of such witness appears to be essential to the just decision of the case. It means the Court must come to a prima facie conclusion that the evidence of such witness is necessary. In Nira @ Niranjan Jena v. State of Orissa (3 supra), relied on by the learned counsel for the petitioner, the case was posted for judgment. In that case prosecution did not examine one material witness. Another witness examined by the prosecution did not support the case of the prosecution. The Court felt that had the said material witness been examined, the truth of real cause of the death of the deceased would have been unfolded. In such circumstances, it was held that summoning of a witness as a court witness would not amount to filling up lacuna and that the Court has powers to summon such a witness. The order to summon the witness was challenged by the accused in that case mainly on the ground that the exercise of power to summon the witness as a Court witness after conclusion of trial and after hearing the matter and when the case is posted for judgment is not necessary. A reading of the above referred judgment makes it clear that it is the Court that came to a conclusion that the evidence of such witness is essential and therefore the Court exercising powers under Section 311 Cr.P.C. summoned the witness. In another case, relied on by the learned counsel for the petitioner in S.R.S. Yadav v. State of M.P. (1 supra), also the prosecution did not examine two witnesses cited by the prosecution as listed witnesses. In such circumstances, the accused moved an application and prayed to examine those witnesses as court witnesses and the petition was allowed. In that case the listed witnesses were sought to be summoned. In another case relied on by the learned counsel for the petitioner in Balaprasanna v. State rep. by its Inspector of Police (2 supra) also a listed witness and who was no other than the maternal uncle and legal guardian of the deceased was not summoned by the prosecution. He was also said to be a witness for recovery of material objects and attested confession. In the above circumstances, on the application filed by the accused the said witness was summoned. The facts in all the above referred cases reveal that the prosecution failed to examine the listed witnesses and that the Court suo motu or on the application filed by the accused summoned those witnesses. Here in this case, the then Mandal Executive Magistrate is not cited as listed witness. Now the case is at the stage of examination of the accused under Section 313 Cr.P.C. Since the then Mandal Executive Magistrate is not a listed witness in the charge sheet, we cannot find fault with the prosecution in not examining the said witness. The Court suo motu did not come to a conclusion to summon the said witness. Now the petitioner/accused wants to examine the then Mandal Executive Magistrate only for the purpose of ascertaining the time of promulgation of order under Section 144 Cr.P.C in Ananthapur Town and to elicit the fact whether the promulgation orders of Section 144 Cr.P.C. was after registration of the murder case of Paritala Ravindra or before registering of such case. Since the petitioner and other accused have a right to adduce defence witnesses on their behalf after their examination under Section 313 Cr.P.C. and since they have filed the application to summon the then Mandal Executive Magistrate and since the learned Sessions Judge has exercised his discretion and passed orders to summon the said witness as a defence witness, I do not see any illegality or irregularity in the order passed by the learned Sessions Judge. Now the only problem is whether the petitioner herein and other accused can cross-examine the said witness to elicit the facts or not. Section 141 of the Indian Evidence Act, 1872 (for short ‘the Act’) deals with leading questions. Section 142 of the Act envisages that leading questions can be put to a witness with the permission of the Court. Similarly, a witness can be cross-examined by a party who called the said witness under Section 144 of the Act, which is as follows. 144. Evidence as to matters in writing.-Any witness may be asked, whilst under examination whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document and if he says that it was, or if he is about to make any statement as to the contents of any document, which in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. Thus, it is clear that the Court may in its discretion permit a party to cross-examine his own witness. In the above circumstances, I am of the view that since there is no illegality or irregularity in the order passed by the learned Sessions Judge, the same cannot be interfered with. However, considering the nature of the evidence, the learned Sessions Judge may permit the petitioner herein to put leading questions and also if necessary may permit the petitioner to cross- examine the said witness under Section 144 of the Act. Subject to the above observation, the Criminal Revision Case is dismissed. ______________________ B. CHANDRA KUMAR, J. Date: 31.12.2009 Nsr Note: Communicate the order copy to the learned Sessions Judge, Anantapur, today itself. [1] 1997 CriLJ 3860 [2] 2005 TLMAD 2022 [3] 2008 CriLJ 1315 [4] 1991 CriLJ 2056 [5] 1987 CriLJ 1396 [6] 1999 CriLJ 321