1997 (9) TMI 648

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....al Judge directed that Herak Mohammed, in whose presence the dying declaration of Shri Jiya Ram was recorded, be summoned for examination under Section 311, Cr.P.C. It was observed by the learned Special Judge that it was in the interest of justice to summon Shri Herak Mohammed. 3. The learned counsel for the petitioner has submitted that in this case the prosecution had closed its evidence. The accused petitioner had been examined under Section 311, Cr.P.C. and the case was listed for final arguments and it was not necessary in the interest of justice to call the witness Herak Mohammed and the impugned order passed by the learned Special Judge is not justified in law, because, it is tantamounting to filling of the lacunas left by the pros....

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....pears to be essential to the just decision of the case. The necessity of finding out a criteria for properly exercising the discretion vested in first part of Section 311 arises from the fact that the power conferred by the first part is discretionary and the discretion must be exercised along well established judicial principles. Under the second part of Section 311, there is no discretion to summon or not to summon a witness. If the Court comes to the conclusion that it is necessary for the just decision of the case, the Court is duty bound to summon and examine or recall or re-examine any person, if his evidence appears to be essential to the just decision of the case. It is necessary to keep in mind the distinction between the two parts....

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....o justice not only from the point of view of the accused and the prosecution, but also from the point of view of orderly society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether this evidence the court thinks in the facts and circumstances of the particular case before it. If this results in what is sometimes thought to be the filling of lacunae, as contended by the learned counsel for the petitioner, that is admissible subsidiary factor and cannot be taken into consideration. 11.1 concur with the observations made by the l....