CHAUHAN, J. - (1.) THE petitioners have challenged the order dated 13. 6. 2005 passed by Special Judge (Women Atrocities & Dowry Cases), Jaipur, whereby he has rejected an application filed by the petitioners under Section 311 Cr. P. C. for summoning two Investigating Officers as Court witnesses.
(2.) THE brief facts of the case are that a Mriag FIR was registered and an enquiry was stated. Initially, during the course of enquiry, the complainant did not level any substantial allegations against the accused petitioners. However, two days later, Sohan Lal, the brother of the deceased, submitted a report in the Police Station wherein he alleged the offences under Sections 498-A, 306 and 304-B IPC against the petitioner. Four different Investigation Officer (henceforth to be referred to as the I. O. , for short) of the rank of Addl. SP/deputy S. P. , carried out the investigation. Subsequently, the police submitted a charge sheet for offences under Sections 498-A and 306 IPC. But subsequently, the court framed a charge for offence under Sections 304-B IPC against the petitioners. Interestingly, the prosecution had proposed to examine 42 witnesses, but after examining only 11 witnesses, it dropped remaining witnesses including the four I. Os. Thus, the prosecution in its wisdom refused to examine any of the I. Os. Since, the witnesses were confronted and contradicted with the statement made by them to the police under Section 161 Cr. P. C. , it was essential that the I. Os. be examined as witnesses. But, as stated above, the prosecution was not willing to call the I. Os. in the witness box. In these circumstances, the accused petitioners moved an application under Section 311 Cr. P. C. requesting the court to summon two I. Os. namely Vidhyadhar Singh Choudhary and Dungar Chand Dangi, as Court witnesses. However, vide order dated 13. 6. 2005 the said application was dismissed. Hence, this petition before us. We have heard the learned counsels for the petitioners and the learned Public Prosecutor. We have also examined the impugned order. Man is a political animal. Why man created a political over-structure, this question has taxes the imagination of great political Philosophers. For, the social contract theorist, like Hobbes, Locke and Rousseau, man entered into a social contract in order of protect his "life and liberty". Left to himself, Man could protect neither his life, nor his liberty. Therefore, while accepting some restrictions imposed by the State, Man secured the protection of his life and liberty. The Preamble of the Constitution of India promises Justice- social, economic and political. Political justice necessarily implies the protection of one's civil and fundamental rights. The most essential fundamental right is of "life and personal liberty". For, it is the raison d'etre (reason of being) of the State itself. Without right to life and liberty, democracy is meaningless. Thus, each person has the right to defend his life and his personal liberty.
(3.) THE Code of Criminal Procedure recognizes the need to safeguard the life and liberty of the accused. In fact, at every turn and juncture it protects these two elements. Criminal judicial system has been created to do justice to the accused, to the State (representing the interest of the victim), and to the society at large. Undoubtedly, the primary function of the court is to do justice. In order to ensure justice, vast powers have been bestowed on the Court. One such power is contained in Section 311 of the Code. Section 311 Cr. P. C. reads as follows:- "311. 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. " The Section is in two parts: the first part uses the word "may" it, thus, bestows a discretionary power on the court to enable it to summon, to examine or to recall and re-examine any person at any stage of an enquiry, trail or proceedings. The second part uses the word "shall". It is, thus, mandatory in nature. Once the court is convinced that the new evidence appears to be essential for the just decision of the case, it is bound to take any of the aforementioned steps (Ref. to Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Anr. (2004) 4 SCC 158)) = RLW 2004 (3) SC 392. In the above noted case, their Lordships of the Apex Court held as under: "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 disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. ;