CRIMINAL MISC.-M NO.35974 OF 2011 (O&M) :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 29, 2011 Kamlesh Rani .....Petitioner VERSUS State of Punjab and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. B. S. Sra, Advocate, for the petitioner. **** RANJIT SINGH, J. The prayer of the petitioner for allowing him to lead additional evidence by invoking the provisions of Section 311 Cr.P.C. has been declined by the Judicial Magistrate Ist Class on 25.10.2011. The petitioner has accordingly filed the present petition under Section 482 Cr.P.C. to challenge the said order. The petitioner has filed a criminal complaint against the private respondents in respect to an incident, for which earlier an FIR was registered on 9.1.2003. The criminal CRIMINAL MISC.-M NO.35974 OF 2011 (O&M) :{ 2 }: case arising out of this FIR and the complaint filed by the petitioner were clubbed together under Section 210 Cr.P.C. The petitioner, who is a complainant, has been examined as a witness in the criminal case and now has made a prayer for leading some additional evidence in the complaint case, which is being tried alongwith the FIR case. The prayer made in the application is to summon additional witnesses like Kamal Krishan Bhargo, Lallan Tiwari and Dr.Rajiv Sethi. In the complaint case, pre-charge evidence of Dr.Rajiv Kumar for complainant has been recorded. These witnesses now sought to be summoned have been cited as a witnesses in the complaint and are stated to be material witnesses for proper adjudication of the case. It is stated that Kamal Krishan Bhargo and Lallan Tiwari are eye witnesses of the occurrence and Dr.Rajiv Sethi had conducted the medical examination of the injured. While opposing the prayer made in the application, the respondents have filed reply, stating that this application is filed after 7 years of the occurrence. Earlier also, one application was filed under Section 311 Cr.P.C. on 12.9.2009 and no prayer was made in the said application for examining these witnesses. Petitioner, Kamlesh Rani, who is the complainant, has not named these witnesses in her statement made before the police or before the Court in FIR case. The Court, while rejecting the prayer, CRIMINAL MISC.-M NO.35974 OF 2011 (O&M) :{ 3 }: has noticed that this complaint has been filed after five years of the incident, when these persons have been cited as witnesses. In her statement made before the Court, the complainant has not named these witnesses, who are sought to be summoned as additional evidence. The complainant has also made a statement, where the names of witnesses sought to be examined is not mentioned. While deposing before the Court, these witnesses have not been named. The complainant in this case has deposed before the Court on 26.5.2006, which was after 4 years of the occurrence. If these witnesses had been the eye witnesses and essential for the prosecution, the complainant could not have missed, naming these witnesses while giving statement before the Court. The Trial Court accordingly found that this attempt seems to be aimed at filling the lacunas left in the prosecution case and to make allegations of graver offences. On this ground, the Trial Court has declined the prayer of the petitioner, especially so when such prayer was not made in an earlier application moved by the petitioner under Section 311 Cr.P.C. Counsel for the petitioner submits that the petitioner has a right to examine the relevant witnesses in support of his complaint and this right can not be denied to her simply because the complaint case is now being tried CRIMINAL MISC.-M NO.35974 OF 2011 (O&M) :{ 4 }: with the FIR case. In support, the counsel has made reference to the case of Naresh Kumar Vs. State of Punjab, 1994 (2) R.C.R. (Criminal) 406. This is a case where application was made to examine a witness by pleading that the complainant has a right to examine witnesses, which are not cited as witnesses in the challan case. This prayer was allowed by the Trial Court, which was challenged before this Court but this petition was dismissed by this Court. On this basis, the counsel submits that right of the complainant to examine witnesses not cited in the challan case can not be fore-closed. The Trial Court has not declined the prayer of the petitioner on the ground that the complainant has no right to examine the witnesses, who are not cited in the challan case. The prayer of the petitioner has been declined primarily on the ground that this is aimed at filling the lacuna left in the case of prosecution. The delay on the part of the petitioner in making such a prayer is the other reason, which has strongly weighed with the Court to decline this prayer. The view formed by the Court appears to be justified. The petitioner, while giving her evidence and appearing as a witness, did not name these witnesses, whom she now intends to examine as additional witnesses. It is, thus, possible to take a view that this exercise is being done to fill in the lacuna left in the case of prosecution. This prayer has CRIMINAL MISC.-M NO.35974 OF 2011 (O&M) :{ 5 }: also been made at much belated stage, though the witnesses had been named in the list of witnesses with the complaint. Undoubtedly, Section 311 Cr.P.C. gives enabling powers to the Court to summon any person as a witness or to examine any person in attendance, though not summoned as a witness or to recall or re-examine any person already examined at any stage of the enquiry, trial or other proceedings under the Code. This Section also enjoins upon the Court to summon and examine or recall or re- examine any such person if his evidence appears to be essential to the just decision of the case. No plea was raised before me that the examination of these witnesses was essential for the just decision of the case. The Court appears to have declined the prayer of the petitioner on the ground that this is an after thought and aimed at filling the lacuna in the prosecution case. Impliedly, the Court has formed a view that in the facts and circumstances of this case, examination of these witnesses is not essential to the just decision of the case. Taking the totality of the circumstances in view, the impugned order may not call for any interference in the facts and background of the case. The petition is accordingly dismissed. November 29, 2011 ( RANJIT SINGH ) khurmi JUDGE