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TMI Blog2011 (8) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... e record of the case it is evident that Smt. Ruchi Saxena, resident of village Aonla, District Bareilly, U.P., is owner of an agricultural piece of land. She is settled in U.S.A. Her property is being looked after by the Appellant Mr. Vijay Kumar, who is her father. To avoid encroachment on the land Smt. Ruchi Saxena started constructing boundary wall on the agricultural land belonging to her. However, construction of wall was objected to, by the Nagar Palika, Aonla on the ground that Nagar Palika is the owner of the said land. Therefore, Smt. Ruchi Saxena filed a suit No. 443 of 1999 in the Court of learned Civil Judge praying for permanent prohibitory injunction to restrain the Nagar Palika, Aonla and its servants, agents, etc. from putting up any obstruction in construction of wall to be carried out on the property in question. The learned Civil Judge, before whom the suit was pending, by order dated September 24, 1999, granted an interim order directing the Nagar Palika not to interfere with the possession of Smt. Ruchi Saxena of her agricultural land and not to obstruct construction of boundary wall. It may be stated that the Nagar Palika had filed an application on September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation of the complaint lodged by the Appellant nor has any concern with the criminal case. 7. On December 16, 2006 an application dated February 26, 2004 was moved on behalf of Smt. Ruchi Saxena in the suit filed by her before the trial court seeking permission to withdraw the suit with liberty to file fresh suit in case there was fresh cause of action. The said application was allowed and the record shows that the learned Counsel for Nagar Palika was also present at the time when the said order was passed. 8. After framing of necessary charges against the two accused the trial of the case was conducted before the learned Special Judge, Bareilly in Special Case No. 2 of 2003. During the trial the prosecution examined witnesses. They were cross-examined on behalf of the accused. On March 18, 2010 the prosecution submitted certified copies of the orders passed by the competent court and the High Court in respect of civil litigation. The learned Special Judge, by an order dated March 22, 2010, allowed the papers to be admitted in evidence, by awarding cost of Rs. 500/- to each of the accused and closed the evidence on behalf of the prosecution. Thereafter, the case was fixed for A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial witness, or examine person present. - 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. Section consists of two parts, viz., (1) giving discretion to the court to examine the witness at any stage; and (2) the mandatory portion which compells a court to examine a witness if his evidence appears to be essential to the just decision of the case. The Section enables and in certain circumstances, imposes on the Court the duty of summoning witnesses who would have been otherwise brought before the Court. This Section confers a wide discretion on the Court to act as the exigencies of justice require. The power of the Court under Section 165 of the Evidence Act is complementary to its power under this Section. These two sections between them confer jurisdiction on the Court to act in aid of justice. There is no manner of doubt that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, has directed the learned Special Judge to summon Smt. Ruchi Saxena as a court witness under Section 311 of the Code of Criminal Procedure and to examine her. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said Section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the Court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt. Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason. The High Court failed to consider the case of the prosecution that the application was submitted by the Respondent No. 2 only to delay the trial and no case was made out by the Respondent No. 2 as to why direction should be given to examine Smt. Ruchi Saxena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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