Whether the court can summon discharged or acquitted accused as witness U/S 311 of CRPC in the same case?

1. A short but interesting question regarding the sweep of Sec. 311 Crl. P.C. Corresponding to Sec. 540 of the 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. 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 I.P.C. against three accused N.S. Subbrayan, 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 3-5-1982 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. The 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, rejected both these objections and directed the issue of summons. While doing so, he observed that the veracity of the witnesses can be decided while disposing of the case on merits.

2. A plain reading of Sec. 311 does not place any restrictions on the power 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 to 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 cannot 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.

3. A few cases which have been relied upon can now be noticed. In Banu Singh v. Emperor I.L.R. 33 Cal. 1353 a Division Bench expressed itself:

“The law, however, is well settled, and there can be no controversy on the point that an accomplice, if he is not an accused under trial in the same case is a competent witness and may, as any other witness, be examined on oath………On such a discharge or acquittal he becomes a competent witness against other persons accused of the same offence. The disability to be examined as a witness on oath against the persons who are brought before the court on the same indictment, may thus cease on the withdrawal of the indictment, against him”.

In Reg v. Hanmatha, I.L.R. (1) Bombay 611 the position of law was expressed in a converse manner;

“It is not competent to a Magistrate to convert an accused person into a witness except when a pardon has been law fully granted under Sec. 347 of the Code of Criminal Procedure. Mora and Ramachandra being accused persons, and not having been legally pardoned, could not be examined as witnesses until they had been acquitted, or discharged, or convicted. Their evidence must, therefore, be rejected as absolutely inadmissible.”

The Supreme Court in Jamatraj v. State of Maharashtra MANU/SC/0063/1967 : A.I.R. 1968 S.C. 178, while considering the sweep of Sec. 540. Cr.P.C. (Repealed Code) expressed itself:

“Statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness provided the just decision of the case demands it…………If the Court has acted without the requirements of a just decision, the action is open to criticism but if the Court’s action is supportable as being in aid of a just decision, the action cannot be regarded as exceeding the jurisdiction.”

The Supreme Court in the aforesaid decision referred to Dora Harrig’s case 1927-2KB 587. In that case five persons were tried, two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty. The first two remained in the dock and the trial proceeded against the other three. They gave evidence on their own behalf and the prosecution case was not quite strong. The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora, against whom the evidence went, to cross-examine him but Dora was not asked to enter the Box again to contradict the new evidence. This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power.

4. The observations made in the aforesaid decisions go to indicate that once the court’s action is supportable as being in aid of a just decision, no exception can be taken if the Magistrate ordered issue of summons to persons who were no longer before him as accused to be tried in the case against the revision petitioner alone. The learned Magistrate has expressed himself that the witnesses appear to be just witnesses and the petition is worth allowing to meet the ends of justice. These expressions can, in the context, be only construed to mean that the Magistrate felt that the examination of these witnesses is essential to the just decision of the case. This objection raised by the revision petitioner is accordingly rejected.

5. It is then argued for the revision petitioner that the learned Magistrate who had earlier dismissed Crl. M.P. No. 1352/82 is not competent to allow Crl. M.P. No. 1938/82 as in effect, the Magistrate was being asked to review his earlier order. The circumstances which prevailed on the Magistrate for dismissing Crl. M.P. No. 1352/82 have been set out. At that time the complainant had not set out the material facts to which the witnesses whom he wanted to summon would speak to When, therefore, the complainant filed the fresh petition giving those particulars, it cannot be fairly said against the complainant that he was seeking a review of the earlier order made by the Magistrate. That apart, Sec. 311 Cr.P.C. empowers the Court to issue summons at any stage of any trial. The Magistrate has not lost such power which in hers in him merely because an earlier defective application filed by the complainant was dismissed. Sec. 397(2) Cr.P.C. also comes in the way of interfering in any manner with the interlocutory order passed by the Magistrate. The revision is accordingly dismissed.