The Madhya Pradesh High Court, on September 28, held that when the Trial Court could exercise its power under Section 311 of the Cr.P.C. to summon any witness, then it could also regulate the sequence in which the witnesses were to be examined.

Bench of Justice Gurpal Singh Ahluwalia heard a bail application under Section 439 of the Cr.P.C.on the ground that the witnesses who were cited as eyewitnesses were not being examined by the prosecution.

The Court observed that, "that the role of the Court is not merely a mute spectator. Its duty is to seek truth. The Court should be alert during criminal trial. An offence is against the society and the Court cannot sit idol and cannot act merely at the pleasure of the Public Prosecutor. It is true that the Sessions Trial is to be conducted by the Public Prosecutor but the Court must be vigilant enough to issue instructions to the Public Prosecutor in case if it is found that the Public Prosecutor is not acting in accordance with law."

"This Court was unable to understand as to why the Public Prosecutor adopted the method of withholding eyewitnesses and why he gave preference to those witnesses whose evidence can at the most be said to be corroborative in nature," the Court noted.

The Court further observed that, "When the Trial Court can exercise its power under Section 311 of Cr.P.C. to summon any witness, then it can also regulate the sequence in which the witnesses are to be examined. Thus the provision of Sections 225, 226 and 301 of Cr.P.C. would not eclipse the power of the Trial Court to make an attempt to find out the truth."

The following directions were passed by the Court:

 (i) The trial Court must ensure that the eyewitnesses are examined at the earliest and should be at the beginning of the trial.

(ii) No prayer of either Public Prosecutor or the defence, which is contrary to the above direction, should be accepted by the Trial Court.

(iii) If the Public Prosecutor has not prayed for examination of eyewitnesses at the first instance even then the Trial Court must call the eyewitnesses at the beginning of the trial and should not perpetuate the mistake of the Public Prosecutor because the Court must realise that the witnesses are eyes and ears of justice and if the system is permitted to close the eyes and ears of justice, then the entire justice dispensation system would fall.

(iv) Whenever the witnesses are present, their examination-in-chief must be recorded even if the defence counsel is not ready to cross-examine.

The application was dismissed as withdrawn under the hope and belief that the Public Prosecutor would certainly pray for issuance of summons/bailable warrants/warrants to the eyewitnesses and if no such prayer was made by the Public Prosecutor, then the Trial Court shall issue summons to the witnesses.