M. Wahajuddia, J. - (1.) Thakur Prasad is the maker of the report and was examined as P.W. 1 Ajodhya Prasad is the scriber of that report. He stand of the defence is that this report was neither scribed by Ajodhya Prasad nor signed by Thakur Prasad. A prayer was earlier made that specimen signatures of Thakur Prasad be sent to U.P. Government Hand-writing Expert for his opinion. Honble High Court vide its order (Annexure 3) observed that if the court is not inclined to send the specimen signatures of Thakur Prasad at the state expense, it may nevertheless consider the request for sending it at the expense of the defence. The specimen signatures of Thakur Prasad were then sent to the U.P. Government Expert. The Expert has reported that the signatures on the first information report do not admit of comparison with the specimen signatures, so no opinion can be given. The accused persons then preferred this application under section 482 of the Code of Criminal Procedure. The prayer in the application was that the Expert has committed error concerning Thakur Prasad and the court may be directed to have that specimen signatures compared by some other Expert. Government Expert is a responsible person and if he say that the signature op the first information report does not admit of comparison with the specimen signatures, there is no reason to suspect his opinion on the point and it will be needless and futile exercise to keep on sending that signature to one Expert and another and thereby delay the proceedings in the sessions trial. The applicant in the affidavit has also stated that the fine Shanti Bose, A.I.R. information report has not been written by Ajodhya Prasad though prosecution alleges to have been scribed by Ajodhya Prasad. It was also stated that actually the first information report has been scribed by one Rama Kant Chaturvedi. It was pointed out to be applicantsT counsel that there is no prayer in the application, under section 482 of the Code of Criminal procedure concerning them. The applicants then moved another application, to supplement the earlier application praying that Ajodhya Prasad may be examined and his specimen hand-writing may be sent for comparison with the hand-writing of the first information report.
(2.) As regards Rama Kant Chaturvedi, I may observe that if the stand of lhe defence is that the first information report is scribed by Rama Kant Chaturvedi, the defence has to examine him as a witness on a positive fact. I am making this observation so that by Successive application, under section 482 of the Code of Criminal Procedure, the sessions trial may not be unnecessarily delayed. Now, I may proceed to consider the submission concerning Ajodhya Prasad. This is murder case. The first information report is the very foundation upon which the structure of the prosecution case is built. The courts have repeatedly found that the first information report has great importance. Once its authenticity is challenged, the prosecution leads evidence to prove its authenticity. The two witnesses, who are material for that purpose, are they very maker of the report and scribe of the report. The prosecution in its wisdom did not, find it necessary to examine Ajodhya Prasad and closes its case. As regards Thakur Prasad, the very authenticity of his signature on the first information report is being challenged and unfortunately any comparison of signature by Expert is not possible when the Government Expert has so reported. The whole matter, therefore, has to be approached in this background. It is next urged that the Sessions Judge has not accepted the request for examining Ajodhya Prasad under section 311 of the Code of Criminal Procedure but has simply said that he will consider the prayer only after defence concludes its evidence and if it is found in the ends of justice to summon Ajodhya Prasad as court witness, he may at that stage consider it. It is then urged that when the Legislature has vested powers of examining any person under section 311 of the Code of Criminal Procedure upon the trial court and the appellate court, this Court in the exercise of its power under section 482 of the Code of Criminal Procedure should not compel the Sessions Judge to exercise its power in one manner or another. Reliance in that connection was placed upon the case of Amar Chand v. Shanti Bose1. I have considered that ruling also at the same time I cannot over-look the fact that when this Court is exercising its inherent jurisdiction, it is its duty to see that any provision of law is not defeated. The powers under section 311 of the Code of Criminal Procedure to examine any witness as court witness do exist and are to be exercised in the ends of justice. The defence is definitely not in a position to examine Ajodhya Prasad as a defence witness because naturally he will not be expected to support the defence and actually by examining Ajodhya Prasad, defence will in one way filling in lacuna in prosecution evidence. The prosecution stand is that first information report is authentic and its further stand is that the first information report was scribed by Ajodhya Prasad, so naturally it is the prosecution which could examine Ajodhya Prasad, but it is not examining him. In this situation the only course open is to consider whether Ajodhya Prasad should be examined under section 311 of the Code of Criminal Procedure when defence obviously cannot examine him as defence witness while the prosecution is avoiding to examine him as the prosecution witness. The powers under section 311 of the Code of Criminal Procedure are to be exercised judicially and not arbitrarily. True that I may not compel the Sessions Judge to, exercise its power in one manner or another. But exercising over all supervisory powers, it is my duty in the exercise of inherent power to properly guide the Sessions Judge to exercise his power under section 311 of the Code of Criminal Procedure. I do feel that the order of the Sessions Judge that he will examine the matter whether Ajodhya Prasad should be examined as a court witness or not only after the defence closes its evidence and not at this stage is per se bad. The defence may not examine any witness what difference it would make. Once a request has been made that the court should consider examining Ajodhya Prasad, who is scriber of the First information report as a court witness when prosecution is not producing him that request has got to be considered. In fact, the Sessions Judge should also necessarily consider, will it not desirable or necessary in the ends of justice to have Ajodhya Prasad in the witness box and have his statement and then send his specimen handwriting for comparison wit the hand writing of the original first information report by Government Expert as was done in the case of Jagdish Prasad? (Thakur) earlier. He will bear into mind that the very authenticity of the first information report is being challenged, which is a delicate position and will it be in the ends of justice to have this position ascertained by having the specimen hand-writing of Ajodhya Prasad compared with the hand-writing in which the original first information report is written. In the circumstances, I partly allow the application under section 482 of the Code of Criminal Procedure and set aside the order of the Sessions Judge to the effect that the prayer for examination of Ajodhya Prasad will be considered after the defence closed its evidence and that too if such necessity is felt then. I direct that in the light of the guidance and observations made in this judgment the lower Court may examine the prayer for examining Ajodhya Prasad under section 311 of the Code of Criminal Procedure and for sending his specimen hand-writing to Government Handwriting Expert of Uttar Pradesh for comparison with the hand-writing on the original first information report forthwith at the expense of the defence as to pass suitable orders under section 311 of the Code of Criminal Procedure, may also observe that the discretion is his, but the discretion is to be exercised judicially and not arbitrarily.
(3.) The prayer for the prosecution side for leave to appeal made verbally is refused as no important point of law is involved.;