Case Note & Summary
The applicant, an accused in Special Case No.48/00 pending before the Special Judge, Bombay, for offences under the Prevention of Corruption Act and sections 120B, 409, 420, 468, 471 IPC, challenged an order allowing the prosecution to examine Mr. Chaskar as a witness under Section 311 CrPC. Mr. Chaskar was not cited as a witness in the chargesheet, and his statement under Section 161 CrPC was not on record. The trial had substantially progressed. The High Court observed that while there is no general prohibition against examining a witness whose statement was not recorded during investigation, propriety requires that such statement be recorded at least before the witness enters the witness box. Without knowing what the witness is likely to say, the Special Judge could not have formed a proper opinion on the necessity of his evidence. Additionally, recording the statement ensures the accused is aware of the likely deposition, enabling effective defence. The court set aside the impugned order and directed the prosecution to first record Mr. Chaskar's statement under Section 161 CrPC, after which the court could consider whether his examination is necessary.
Headnote
A) Criminal Procedure - Examination of Witness - Section 311 CrPC - Propriety of summoning witness without prior statement - The prosecution sought to examine Mr. Chaskar, who was not cited as a witness in the chargesheet and whose statement under Section 161 CrPC was not on record. The Special Judge allowed the application. The High Court held that without knowing what the witness is likely to say, no proper opinion could be formed about the necessity of his evidence. The order was set aside, and the prosecution was directed to first record the witness's statement under Section 161 CrPC before seeking his examination. (Paras 3-10) B) Criminal Procedure - Right of Accused - Fair Trial - Section 311 CrPC - The recording of a statement under Section 161 CrPC before examination ensures the accused is aware of what the witness is likely to depose, providing a proper opportunity to defend. (Para 7)
Issue of Consideration
Whether the Special Judge could allow examination of a witness under Section 311 CrPC when no statement of that witness under Section 161 CrPC was on record, and whether such order was proper without knowing what the witness would depose.
Final Decision
Application allowed. The impugned order of the Special Judge is set aside. The prosecution/investigating agency is directed to first record the statement of Mr. Chaskar under Section 161 CrPC, after which the court may consider whether his examination is necessary.
Law Points
- Section 311 CrPC
- examination of witness not cited in chargesheet
- necessity of prior statement under Section 161 CrPC
- right of accused to know evidence
- inherent powers under Section 482 CrPC
