G. K. SHARMA, J. - (1.) THIS petition u/s. 482, Cr. P. C. is directed against the order dated 29th Oct. '83, passed by the CJM, Kota, granting the application of the prosecution filed u/s. 311, Cr. P. C. By the order aforesaid, the court granted permission to the prosecution to examine further witnesses.
(2.) BRIEFLY narrated the facts of the case are that the Senior Inspector, Factories and Boilers, Kota, inspected M/s. Shriram Rayons, Kota, on 3rd & 4th March, '76. After inspection, he prepared a report Ex. P. 8. The Inspector, in his statement, has admitted that the report prepared by him is Ex. P. 8. There is no other report on the record of the case. So, Ex. P. 8 is the only report of inspection by the Senior Inspector on 3rd & 4th Mar. '76. After the said inspection, a complaint was filed by the Senior Inspector in the court of CJM, Kota, against the petitioner. Along with that complaint, a list of witnesses as required by S. 204 (ii), Cr. P. C, was also filed. According to that list, Bankeylal Agarwal, Senior Inspector, Factories and Boilers alone was cited as witness. After registering the said complaint, the CJM started proceedings in this case. The prosecution examined Bankeylal Agarwal on 5th May, '78; and the complainant closed his evidence. Thereafter, the case was fixed for defence evidence. After examining the defence witnesses, the evidence of the accused was closed on 20th Aug. '83, and the case was fixed for final arguments. Then, on 27th Aug. '83, the Assistant Public Prosecutor on behalf of the complainant, submitted an application u/s. 311, Cr. P. C,, and requested the court to grant them permission to adduce further evidence on behalf of the complainant. That application was accepted by the learned CJM, Kota, on 29th Oct. '83, against which, the present petition has been filed. Mr. Mehrish, the learned counsel for the petitioner argued that the complaint was filed in the year 1976, and along with that complaint, a list of witnesses was also filed. Bankeylal, the solitary witness was cited in that list. After a lapse of 5 years from the closure of the evidence, the application u/s. 311, Cr. P. C. was filed. No ground was mentioned in that application as to why the witnesses to whom they wanted to examine at that time, had not been cited in the list of witnesses. Even Bankeylal Agarwal in his statement, has not stated that these persons were present when he had inspected the factory on 3rd & 4th Mar. '76. Even no question was asked by the complainant in the cross - examination of the defence witnesses about the presence of these persons to whom they wanted to examine at that time. Even there is no mention of those witnesses in the report Ex. P. 8, which was prepared by Bankeylal Agarwal P. W. 1. So, there was no reason to grant permission to the prosecution, to examine those witnesses, after a lapse of 5 years from the closure of the evidence of the complainant. The learned Public Prosecutor argued that the court has ample power to grant permission to examine witnesses at any stage, in the interest of justice. According to him, even at the time of hearing final arguments, if the court feels that it is necessary to examine certain witnesses to arrive at a correct conclusion, such permission can be granted to record statements of those persons. He argued that, in the present case, no doubt, the case was fixed for final arguments, but, the learned CJM correctly found that in the interest of justice, the persons named in the application filed u/s. 311, Cr. P. C, should be examined. In support of his aforesaid contention, he cited the case of Jamatraj vs. State of Maharashtra (1 ). I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. In the case cited above, it has been observed that u/s. 540 (old) and u/s. 311 (new), Cr. P. C, there is no limitation on the power of the court arising from the stage to which the trial may have reached, provided the court is bona fide of the opinion that for the just decision of the case, the step must be taken. In that case, it was further observed as under:- "it is clear that the requirement of just decision of the case, does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is, however, the other aspect, namely, of the power of the High Court which is to be exercised to reach a just decision. This power is exercisable at any time. " Thus, from the observations of the Supreme Court in Jamatraj's case (supra), it is clear that the court has ample power, and that power can be exercised at any stage. But, it should be in the exercise of reaching a just decision. In the present case, there is nothing in the report Ex. P. 8 to show that those witnesses were present when the Senior Inspector inspected the factory. There is no document on the record to prove their presence which may help the court in arriving at a correct conclusion. Even the Senior Inspector, Bankeylal Agarwal P. W. 1 in his statement, has not stated that those persons were present when he inspected the factory. No question was suggested to the defence-witnesses that those persons were present when the Senior Inspector inspected the factory. I do not understand, how those persons would help the court to arrive at a just decision in this matter. Their presence was not at all established by the prosecution.
(3.) IN the application filed u/s. 311, Cr. P. C dated 27th Aug. '83, it has been mentioned in para-2 that Nannehkhan, Govindsingh, Ramwali and Triloki are the employees of the accused working in the factory, and they were present at the spot when the Senior INspector inspected the factory, who also made inquiries from those persons. IN para-3 of the said application it has been mentioned that the Factory INspector in his report had mentioned the names of those witnesses. IN reply to the said application the averments contained therein, were denied and it was mentioned that the said application was a mala fide one. IN the order dated 29th Oct. '83, the learned CJM has also, mentioned that the witnesses, to whom at that time, the prosecution wanted to examine, were present at the spot when the Senior INspector inspected the factory. He has also mentioned that there was mention of those witnesses in the report. It is unfortunate that factually, this is not correct. IN the application, the Assistant Public Prosecutor wrongly mentioned this fact about the presence of those witnesses at the spot when the Senior INspector inspected the factory. The learned CJM also, in his order, has mentioned wrong fact. It is not expected from the court to mention wrong facts in its order. It should have seen the report Ex. P 8 and then mentioned the fact in the order. It is unfortunate that the learned CJM was so negligent that in his order, he mentioned wrong facts. Suffice it to say that it was not expected from the court to have mentioned wrong facts in its order. Considering all the aspects of this case, I find that the application u/s. 311, Cr. P. C, was not a bona fide application. The complaint was filed in the year 1976. The evidence of the prosecution was closed on 5th May, 1978. During this period, no application or names of some new witnesses, were filed in the court. Then, the evidence of the complainant was closed on 5th May, '78; and that of the accused on 20th Aug. '83. During this period of 5 years, no such application was moved by the complainant; and when the case was fixed for final arguments such an application was moved alleging wrong facts therein. This was nothing but a mala fide action, and such mala fide action should not be encouraged by the court. The learned CJM has not only erred, but acted negligently in passing the order accepting the application u/s. 311, Cr. P. C. That order of the learned CJM, being illegal and incorrect, cannot be sustained. The application u/s. 311, Cr. P. C. being a mala fide one, deserves dismissal. In the result, the petition u/s. 482, Cr. P. C. is accepted. The order of the learned Magistrate (CJM) dated 29th Oct. '83, is set aside. The record of the case be sent back with the direction that the learned CJM, Kota would dispose of the case within 15 days of the receipt of this order. . ;