Case Note & Summary
The applicant, Mahesh s/o Mohan Nimje, was an accused in Sessions Trial No. 512 of 2007 pending before the Additional Sessions Judge, Nagpur. The prosecution filed an application at Ex.124 to summon Dr. Jeevan Deshpande as a witness. The trial court allowed that application by order dated 28.12.2009. Aggrieved, the applicant filed the present criminal application under Section 482 CrPC challenging that order. The applicant argued that the statement of Dr. Shinde recorded under Section 161 CrPC was exculpatory and could not be taken on record, and that the power under Section 311 CrPC could only be exercised if the evidence was essential for a just decision, which it was not. The State opposed the application, submitting that the prosecution has the right to examine its witnesses and the defence can object to inadmissible portions. The High Court examined the impugned order and the statement of Dr. Shinde. It found that the evidence of Dr. Shinde was essential and the prosecution had not erred in calling him. The court held that even if the statement is exculpatory, the defence and the court can determine its admissibility during trial. Therefore, the High Court dismissed the application, leaving the defence at liberty to raise objections during the recording of evidence.
Headnote
A) Criminal Procedure - Summoning of Witness - Section 311 CrPC - Prosecution's Right - The trial court allowed the prosecution's application to summon Dr. Jeevan Deshpande as a witness. The applicant argued that the witness's statement under Section 161 CrPC was exculpatory and could not be taken on record. The High Court held that the prosecution has the right to choose its witnesses and the court can summon a witness if his evidence is essential for a just decision. The defence can object to inadmissible portions during recording of evidence. (Paras 2-5)
B) Evidence - Exculpatory Statement - Admissibility - Section 161 CrPC - The applicant contended that the statement of Dr. Shinde under Section 161 CrPC was exculpatory and could not be used. The High Court observed that even if the statement is exculpatory, the defence and the court can determine its admissibility during trial. The mere fact that a statement may be exculpatory does not bar the prosecution from examining the witness. (Paras 3-5)
Issue of Consideration
Whether the trial court erred in allowing the prosecution's application to summon Dr. Jeevan Deshpande under Section 311 CrPC when his statement under Section 161 CrPC was allegedly exculpatory.
Final Decision
The High Court dismissed the criminal application, leaving the defence at liberty to take objections during recording of evidence of Dr. Shinde.
Law Points
- Section 311 CrPC
- Prosecution's right to choose witnesses
- Exculpatory statement admissibility
- Court's power to summon essential witness
Case Details
2010 LawText (BOM) (01) 41
Criminal Application No. 73 of 2010
Mr. R.K. Tiwari for the Applicant, Mr. A.S. Sonare APP for the Non-applicant
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal application under Section 482 CrPC challenging the trial court's order allowing the prosecution to summon a witness.
Remedy Sought
The applicant sought to quash the order dated 28.12.2009 passed by Additional Sessions Judge, Nagpur, allowing the prosecution's application to summon Dr. Jeevan Deshpande as a witness.
Filing Reason
The applicant contended that the witness's statement under Section 161 CrPC was exculpatory and could not be taken on record, and that the power under Section 311 CrPC was not properly exercised.
Previous Decisions
The trial court (Additional Sessions Judge, Nagpur) allowed the prosecution's application at Ex.124 in Sessions Trial No. 512 of 2007 to summon Dr. Jeevan Deshpande for giving evidence.
Issues
Whether the trial court erred in allowing the prosecution's application to summon Dr. Jeevan Deshpande under Section 311 CrPC when his statement under Section 161 CrPC was allegedly exculpatory.
Whether the power under Section 311 CrPC can be exercised only if the evidence is essential for a just decision.
Submissions/Arguments
Applicant: The statement of Dr. Shinde under Section 161 CrPC is exculpatory and cannot be taken on record. Power under Section 311 CrPC cannot be exercised unless the evidence is essential for a just decision, which it is not.
Respondent: The prosecution has the right to examine its witnesses. The defence and the court can object to inadmissible portions during recording of evidence.
Ratio Decidendi
The prosecution has the right to choose its witnesses, and the court can summon a witness under Section 311 CrPC if his evidence is essential for a just decision. The mere fact that a statement under Section 161 CrPC may be exculpatory does not bar the prosecution from examining the witness; the defence and the court can determine admissibility during trial.
Judgment Excerpts
The statement clearly shows that the evidence of Dr.Shinde is essential and the prosecution has not made any error in making the choice of calling the witness in the Court to depose.
The socalled exculpatory statement, as stated by the learned counsel for the applicant or as the case may be, if at all deposed, the defence and the Court are always at liberty to find out the admissibility thereof and accordingly make the legal and correct recording of evidence.
Procedural History
The applicant is an accused in Sessions Trial No. 512 of 2007 pending before the Additional Sessions Judge, Nagpur. The prosecution filed an application at Ex.124 to summon Dr. Jeevan Deshpande as a witness. The trial court allowed that application by order dated 28.12.2009. The applicant then filed the present criminal application under Section 482 CrPC challenging that order. The High Court heard the matter and dismissed the application on 15.01.2010.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 161, 311, 482
