The Hindu : Tamil Nadu / Madurai News : Order summoning witnesses on judgment day quashed

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Tuesday, Sep 14, 2004

Tamil Nadu

Tamil Nadu - Madurai

Order summoning witnesses on judgment day quashed

By Our Staff Reporter

MADURAI, SEPT. 13. The Madurai Bench of the Madras High Court today quashed the order of a lower court, which had summoned two more witnesses for clarification, on the day when it had to pass judgment in a murder case.

Passing orders on a revision petition filed by the accused, challenging the veracity of the order passed by the Principal Sessions Judge (PSJ), Thanjavur, Justice D. Murugesan ruled it as unfair to issue summons on the day of judgement, as no useful purpose would be served in examining the witnesses.

In his petition before the Bench, the accused said he was a sole accused in the case facing trial before the PSJ. The prosecution had closed its evidence after examining 14 witnesses and seven witnesses were examined from his side.

Arguments on both sides were heard and completed on July 26, 2004, following which the PSJ directed the matter to be posted for judgment on July 30.

But on the said date, the PSJ, invoking the powers under Section 311 (power granted to any court to summon material witness) of the Cr. P.C., passed orders summoning two more witnesses for clarification in their statement recorded under Section 161(3) (examination of witnesses by police) of the Cr. P.C.

`Unacceptable'

S. Nagamuthu, counsel, argued that the PSJ's order, issuing further summons even after the trial was completed, was unacceptable and hence liable to be quashed.

Justice D. Murugesan said the power under Section 311 Cr. P.C. could not be used to fill up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival sides.

``Invocation of such power shall not be arbitrary and must be exercised fairly, bona fide and in the exigency of the situation,'' he said.

As far as the case of the petitioner before the Bench was concerned, the judge said, ``The learned Sessions Judge by his impugned order has proceeded to summon the witnesses only to clarify the alleged factum as recorded in the statements...as the said statements by themselves are not admissible in evidence... no useful purpose would be served in examining the witnesses, the exercise of power under Section 311 Cr. P.C. is not fair and the circumstances do not warrant issuance of summons.''

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