- (1.) A short but interesting question regarding the sweep of Sec. 311 Crl. PC corresponding to Sec. 540 of tha old Code is raised in the revision. Under the material provisions of Sec. 311, any Court may, at any stage of trial under the Code, summon any person as a witness, and the Court shall summon any such person if his evidence appears to it to be essential to the just decision of the case.
(2.) The material facts which lead to this revision can be briefly set out. The 1st respondent filed a complaint alleging offence under Secs. 415, 420 and 480 TPC against three accused N.S. Subbarayan, N. Chennimaliay and P.M. Kannan. The complaint was taken on file in C.C. No. 95/81 on the file of the IVth Addl. Judicial I Class Magistrate, Vijayawada. The complainant subsequently compounded the offence as against Subbarayan and Kannan and the magistrate granted permission for such compounding, by his order dated 3-5-1932 in Crl. M.P. No. 1026/82. Thereafter C.C. No. 95/81 concerned only the second accused who is the revision petitioner. The complainant thereupon applied in Crl. M.P. 1352/82 to summon five witnesses including Subbarayan and Kannan. That petition was dismissed on 10-8-1982, the Magistrate being of the view that the complainant did not disclose in that petition as to which fact would be deposed to by those witnesses. The complainant thereupon applied in Crl. M.P No. 1938/82 to summon the same witnesses, but this time he gave particulars about the facts to which the witnesses would give evidence. The revision petitioner opposed the said application substantially on two grounds. Tho first objection is that the Magistrate's order in Crl, M.P. No. 1352/82 dated 10-8-1982 has become final and the Magistrate cannot pass a fresh order which operates substantially as review of his earlier order. The second objection is that Subbarayan and Kannan who previously figured in the case as A-1 and A-3 are in the nature of co-accused and they cannot be summoned. The learned Magistrate has, by the impugned order, rejectad both these objections and directed the issue of summons. While doing so, he observed that the veracity of tho witnesses can be decided while disposing of the case on merits.
(3.) A plain reading of Sec. 311 does not place any restrictions on the powers of the Court to issue summons to a witness if the Magistrate is of the opinion that the evidence of those witnesses is essential to the just decision of the case. After the complainant compounded the offences with Subbarayan and Kannan, the latter two persons were acquitted as a result of the compounding and no longer figure as co-accused in the case tp be tried along with the revision petitioner. It can no doubt be said that having figured as co-accused at an earlier point of time the evidence which those witnesses are likely to give is in the nature of an accomplice evidence, but then the court will naturally be on its guard in not acting on such evidence unless their evidence is corroborated in material particulars. The absence of evidence corroborating the evidence of these two persons in material particulars can not impinge in any manner on the power of the court to summon them as witnesses. Sec. 311, therefore, gives ample power to the court to summon witnesses who are no longer accused before him if the Magistrate felt that their evidence is essential to the just decision of the case.;