Aeltemesh Rein v. State Of Maharashtra

1. The applicant-accused has preferred this revision application feeling aggrieved by the order dated 30th July, 1979 passed by the learned Chief Judicial Magistrate, Nagpur, directing issue of a summons to bank agent to be examined as a Court witness when the case was fixed by him for pronouncement of judgment. The applicant is facing this trial for the offence punishable under S. 420 of the I.P.C before the learned Chief Judicial Magistrate, Nagpur. After recording of evidence of about 11 or 12 witnesses, the case came to be fixed for further evidence on 26th June, 1979. As the prosecution witnesses were absent on that date, the prayer of the learned A.P.P for grant of further time to produce the witnesses on the next date was rejected by the learned Magistrate. The Roznama dated 26-6-1979 reads thus:

“Accused present. A.P.P for State. P.Ws absent. Summons back. A.P.P for State prays for grant of time to produce witnesses on next date, (Orally prayed). Rejected. Many chances given to the prosecution. I proceed further. Case for statement of accused”.

2. After the statement of the accused was recorded, the case came to be fixed for argument on 21-7-1979 on which date the arguments were heard and the case was posted for pronouncement of judgment on 30th July, 1979.

3. On 30th July, 1979 instead of pronouncing the judgment the learned Magistrate passed the impugned order directing issue of a summons to the Bank Agent as a Court witness, the impugned order dated 30th July, 1979, reads thus:

“Accused present.

A.P.P for State.

On perusal of record I find that the evidence of Bank witnesses is necessary for this case, hence issue summons to the Bank Agent at Bhilai as per reference of letter dated 19-6-1975, as Court witness. Case for evidence on 20-8-1979”.

4. What is submitted by the applicant is that once the learned Magistrate had decided to fix the case for judgment, it amounted to termination of trial whereafter the Magistrate was bound to proceed in accordance with Section 248, Cr. P.C, 1973, (hereinafter called the Code). Once the learned Magistrate had refused the prayer of the prosecution to call witnesses and to postpone the hearing, the same witnesses could not be called by the Court after such refusal. It was lastly submitted that once the case was fixed for judgment under Section 353, the learned Magistrate could not purport to act under Section 311 of the Code. None of these submissions of the applicant can be accepted.

5. Section 353(1) of the code is in these terms:

“353(1) The judgment in every trial in any criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders…………” (underlining is mine). The expression “after the termination of the trial” in this section only means after the entire evidence both on behalf of the prosecution and on behalf of the defence is recorded and arguments are heard. It cannot be said that the trial of a criminal case comes to an end as soon as the evidence is recorded and that the ultimate judgment pronounced in a case forms no part of a trial.

6. Section 311 of the Code empowers the Magistrate to summon and examine any person at any stage as a Court witness. This section is in these terms:

“311. 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”.

7. The submission of the applicant is that the trial of the case had come to an end once the evidence was recorded and the arguments were heard and the learned Magistrate, therefore, could not direct issue of summons to any witness purporting to act under the above section. This submission cannot be accepted as I have observed above that the trial of a criminal case comes to an end only after pronouncement of the judgment, either of conviction or of acquittal.

8. Under Section 311 of the Code, the Magistrate can summon and examine any witness as a Court witness at any stage, till he pronounces the final judgment. It cannot, therefore, be said that the learned Magistrate acted illegally in directing issue of summons to a witness to be examined as a Court witness when the case on that date was fixed for judgment. The impugned order dated 30th July, 1979 passed by the learned Magistrate, therefore, does not suffer from any infirmity or want of jurisdiction.

9. It was further submitted by the applicant that under Section 248(2) of the Code, which is in mandatory terms, the learned Magistrate had to pronounce a judgment of acquittal, since he did not find him guilty. This submission again is devoid of any merit. The learned Magistrate has yet to make up his mind and prepare a judgment either of conviction or of acquittal. Again in postponing the pronouncement of judgment to a subsequent date, it cannot be said that the learned Magistrate has acted without any jurisdiction or committed any error. I find that the learned Magistrate was perfectly competent to pass the impugned order in exercise of his powers conferred under Section 311 of the Code as he was still in seisin of the trial of the case. The order so passed, therefore, calls for no interference. In the result, this revision application being devoid of substance has to be dismissed the revision application is dismissed.

10. Revision dismissed.