- (1.) B. L. Loomba, J. The petitioners in this writ petition under Section 482 of the Code of Criminal Procedure are facing their trial under Sections 147, 148, 149, 307, 302, 323 and 324 of the Indian Penal Code in Sessions Trial No. 176 of 1985, State v. Brij Lal and others in the Court of IInd Additional District Judge, Barabanki. The main victim of the crime was Swami Dayal, Advocate of Barabanki. Three other persons, namely, Deoki Nandan Pandey, Mata Prasad and Ram Tirath were said to have received injuries in this occurrence. Besides these three injured, seven more persons were named in the first infor mation report as eye- witnesses. The prosecution examined one injured, namely, Deoki Nandan Pandey and another eye- witness, namely, Maharaj Bali and closed its evidence.
(2.) THE grievance of the accused petitioners, it appears, was that the prosecution intentionally and without any justifiable reason withheld from being examined two injured persons at the trial and the same being material witnesses ought to hive been examined. THE Public Prosecutor, it appears, sought discharge of the named witnesses en the ground of their having been won over by the accused persons. This application was allowed and the other named witnesses were discharged. THE accused persons then moved application under Section 311 of the Code of Criminal Procedure before the learned Additional Sessions Judge with the prayer that the two injured witnesses, namely, Ram Tirath and Mata Prasad may be examined by the Court under Section 311 of the Code of Criminal Procedure as Conrt witnesses. This application was rejected by the learned Additional Sessions Judge by his order, dated 5- 1-1988 and it is this order which is under challenge under Section 482 of the Code of Criminal Procedure. The grounds raised are that Mahraj Bali being the father of the deceased is a highly interested person and that Deoki Nandan has a long association with the family of the complainant, Mahraj Bali and as such only two highly interested persons were examined by the prosecution while independent available witnesses were withheld with oblique motives and at least the two injured witnesses whose presence at the time of occurrence was not in doubt, being material witnesses, ought to have been examined by the Court under Section 311 of the Code of Criminal Procedure, which runs as follows: "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. " Learned counsel for the petitioners laying emphasis on the word 'shall' in the second part of the said section, submit that it was obligatory on the part of the learned Additional Sessions Judge to have summoned the two injured witnesses because the evidence of these witnesses ex-fade would be essential to the just decision of the case.
(3.) A perusal of the impugned order passed by the learned Additional Sessions Jude indciates that the prayer of the accused persons was opposed by the Public Prosecutor on the ground that the person who had received grievous injured has already been examined and that injured Mata Prasad complained of pain only while the third injured person, namely, Ram Tirath had sustained only one simple abraded contusion and that these two injured persons had been working in the nearby fields and had actually arrived at the last stage of the incident and being residents of the village of the accused persons, they had been won over by the accused. From the side of the accused petitioners it is denied that these two injured persons had, in any way, been won over by the accused. Learned Additional Sessions Judge, it appears, being influenced by the submissions raised by the Public Prosecutor observed that the defence evidence having not yet started, it would be open to the accused persons to examine the two injured persons in defence if so desired. It was observed lastly in the order that "i do not think it just and proper to summon them as Court witnesses at the instance of the defence at this stage (emphasis supplied ).;