- (1.) K. Narayan, J. Daya Shankar Singh, an accused in a murder case, has approached this Court under Section 482, Cr, P. C. for a direction to the Sessions Judge in effect making him examine two witnesses, namely, Sri Vyas Muni Misra Inspector C. B. , C. I. D. and Ballastic Expert whose report is on the record, as court witnesses. For a proper appreciation of the prayer, it will be worth while to mention a few more facts obtaining in the present trial. It appears that there was an incident, in which possibly 11 people were murder ed. An ordinary investigation by the police proceeded and at some later stage, somehow C. B. , C. I. D. was also directed to investigate the matter. Some permission was also obtained from the court in that behalf but that is not material for the purposes of the present application. The prosecution examined a number of witnesses and thereafter closed evidence, by moving applications 415-B and4l6-B. It appears from the order dated 21-6-1993, certified copy of which has been made available here by the counsel for the complainant respondent that both these applications were opposed by the accused, who had filed a regular objection (paper No. 432 Kha ). The court while allowing the applications and rejecting the objections observed that the ballastic expert may be cross-examined, if need be at proper stage. I fail to understand as to how a document once tendered in evidence and accepted by the court, could be considered for the purposes of cross-examination of the person subscribing the same. If that document is not accepted in evidence, the person may or may not be examined and if that document is accepted, the person making the document shall not be available even for oxamination-in-ehief what to say of cross-examination. However, at the same time I may mention that according to the learned Counsel for the applicant here, that document might be favourable to him but in that event also he may require presence of the person concerned for making out certain aspects.
(2.) THE other witness discharged by this order of 21-6-1993 amongst others, was Sri Vyas Muni Misra. He is a person, who is needed by the defence for the proof of certain earlier statements recorded by him under Section 161, Cr. P. C. which have already been confronted to the witnesses, I need not go for the value of those contradictions here but the fact remains that those aspects of the evidence are material. It is thus very clear and has, in fact, not been challenged that the witnesses are material and the only difference in the arguments before me has been as to whether they should be examined as court witnesses or it may be left for the defence to get their presence and examine them as defence witnesses. Obviously both these persons are mentioned in the charge-sheet, may be of the U. P. Police or of C. B,, C. I D. as witnesses and once they are witnesses mentioned in the charge-sheet on the basis of which the court is proceeding, they are witnesses of the prosecution and their position cannot be altered. merely because the court has permitted, (I will say wrongly), to discharge them despite opposition on the part of the defence. The examination of an Investi-gating Officer is almost a must and the prejudice caused by failure in this behalf need not bo highlighted more than what has already been said by Division Bench of this Court in the case of Sahab Jan and others v. State. reported in 1989 (26) ACC 350. The learned Counsel for the complainant respondent has also drawn my attention to the decision in the case of Mohanlal Shamji Sont v. Union of India, reported in AIR 1991 SC 1346, Though in the beginning of para 10 of the judgment, their Lordships had observed that the cardinal rule in the law of Evidence is that the best evidence should be produced before the court and that yet it was left either for the prosecution for defence to establish its respec tive cases by adducing best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. However, this is not all which has been said by their Lordships. The paragraph further proceeds: "none-the-less if either of the parties withholds any evidence which could be produced and which if produced be unfavourable to the party withholding such evidence, the Court can draw a presump tion under Illustration (g) to Section 14 of the Evidence Act. In such a situation a question that arises for consideration is whether the Presiding Officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administring justice ? It is a well accepted and settlel principle that a Court must discharge its statutory functions-whether discretionary or obliga tory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 31 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can summon any person as a witness or examine any person in attendance though not summon ed as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute because if judgment happens to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. " A reference to decision in the case of State of West Bengal v. Tulsi Dass Mwidhra reported in (1963) 2 SCJ 204, was also made in the said case, which may be quoted, with much use : "it would be noticed that this section confers on criminal courts very wide powers. It is no doubt for the Court to consider whether its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence if any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exer cise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the Just deci sion of the case. " J. I. C.-16
(3.) THESE are basic principles. It cannot be denied that the Courts have also not only to do justice but also make an effort. They should come as a fair one. The duty of the prosecution unfortunately has gone astray. The police officer or the prosecution as a whole is also comprised of public servants which should be equally independent in their appioach to the decision and justice in every case. It is unfortunate that for various administrative reasons, they have become interested in decisions in their favour, which should be disapproved. There is no dispute that the two witnesses are material for the pur poses of defence and have to be examined. The only thing in dispute here is as to whether they should be examined as Court witnesses or defence witnesses. For that matter also some observations need be made. An accused whose skin is too thin should not be placed at least by the court in a situation where he may be compelled to suffer anything, at least nothing more than what is required by law as a matter of punishment. There is nothing like burden on accused except for certain general exceptions and for facts which may be within bis special knowledge, which do not obtain. On the other hand, both these witnesses belong to police department and allowing an accused to a situation where he may first have to say that the witnesses are very reliable and then challenge in cross-examination will not be a happy situation for the accused. In such circumstances, it is very obvious that the learned Sessions Judge has not been justified in accepting discharge of these witnesses in the very begin ning despite opposition of the accused as is evident by the order dated 21-6-1993. However, now best that can be done is that they may be examined as Court witnesses and for this reason, the application should succeed.;