Gau HC | Mere fixing of matter for judgment on a subsequent date by itself cannot be construed as termination of trial; petition challenging summoning of witness dismissed

Gauhati High Court: Achintya Malla Bujor Barua, J. dismissed a petition against the order of the trial court whereby it had summoned the Controller of Examination of the Board of Secondary Education, Assam to produce relevant documents in order to prove the age of the prosecutrix.

The petitioner was facing trial under Sections 366, 342 and 34 IPC along with Section 4 of Protection of Children from Sexual Offences Act, 2012. As per the petitioner, the arguments had concluded and the matter was fixed for judgment on 26-04-2019. However, submitted the petitioner, that as he had taken a substantive stand that the prosecutrix was not below the age of 18 years on the date of occurrence. The Aditional Sessions Judge decided to fill up the lacuna in the prosecution case by suo moto issuing an order, whereby summons was issued to the Controller of Examination as mentioned above.

The petitioner was represented by H. Goswami, Advocate, contended that under Section 311 CrPC, the trial court can summon a material witness or examine any person only at the stage of enquiry or trial or in any other proceeding under the Code and not after termination/conclusion of the trial. The petitioner also relied upon Section 353 which inter alia provides that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in the open court presiding officer immediately after termination of the trial or at some subsequent time of which notice shall be given to the parties. It was contended that as per the provisions of Section 353 which provides for judgment after the termination of a trial, any order passed in a trial reserving a matter for judgment, would itself be an indication that the trial of the matter had already concluded. Accordingly, the very order posting the matter for judgment on 26-04-2019 was itself a conclusive indication that the stage of termination of the trial already had been arrived.

Rejecting such contentions, the High Court observed: “Section 353 nowhere provides that once a proceeding is fixed for judgment that by itself is an indication that it is the termination of the trial. All that it provides is that the Judgment shall be pronounced by the presiding officer after the termination of the trial. Therefore, only a pronouncement of the judgment itself can be understood to be a situation where there is a termination of the trial and merely because the matter stood fixed for a judgment to be delivered on a subsequent date by itself cannot be construed to be a termination of the trial.

It was noted that Section 311 clearly provides that any Court may at any stage of the enquiry trial or other proceedings under the Code; summon a person as a witness, or examine the person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if his evidence appears to the Court to be essential to the just decision of the case. Resultantly, finding no infirmity in the impugned order, the Court dismissed the petition.[Deepjyoti Kalita v. State of Assam, 2019 SCC OnLine Gau 2631, decided on 04-06-2019]

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