NILAMANI DAS Vs. BHIKARI NAYAK

JUDGEMENT

(1.) This is a classic example how cases are ineptly handled by the Prosecutors and the Presiding Officers. Opposite parties faced trial for allegedly having committed offences under Ss. 143, 149, 426, 427, 447 and 452 of the Indian Penal Code, 1860 (in short, 'IPC'). The learned Sub-Divisional Judicial Magistrate, Nayagarh (described hereinafter as 'SDJM') was in seisin over the proceeding. The Associate Public Prosecutor who appeared for the prosecution, filed a memorandum on 14-7-1988 stating that there was no necessity to examine four of the witnesses named in the charge-sheet; because notices had earlier been issued to them, but could not be served. On 19-9-1988 another memorandum was filed by him stating that since two of the witnesses have already stated about the overt acts of the accused persons, there was no necessity to examine any other witness. It may be indicated here that other witnesses whose presence was not desired by counsel included the Investigating Officer and the informant himself. Learned SDJM directed acquittal of the accused persons, because the prosecution has failed to examine the Investigating Officer and the informant, because according to him they were the important witnesses for the prosecution.

(2.) The Presiding Officer is not to act as a silent spectator, and mechanically record what is stated by the witnesses in court. The Presiding Officer has a duty to see that justice is done. In this context, it is necessary to refer to S. 165 of the Indian Evidence Act, 1872 (in short, the 'Evidence Act') and S. 311 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The provisions are complementary to each other. Section 311 of the Code confers very wide powers upon a court in the matter of summoning witnesses. The section consist of two parts, (1) giving a discretion to the court to examine a witness at any stage, and (2) the mandatory portion which compels a court to examine a witness if his evidence appears essential to the just decision of the case. The object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper adjudication. The court may exercise power under S. 311 in any of the following three ways:

(3.) As indicated above, very wide powers are conferred under the section. But wider the power, the greater is the need for restraint while exercising the discretion. The power should be exercised to prevent miscarriage of justice owing to some witness not having been called.