Cr.MMO No.62/2009 15.06.2009 Present: Mr. Ramesh Thakur, Assistant Advocate General, for the petitioner. Heard and gone through the record. A case, under Sections 304 & 201, read with Section 34 of the Indian Penal Code, is pending trial in Sessions Court, Kangra at Dharamshala. Trial of the case has commenced and some witnesses have also been examined. Two of the witnesses examined, during trial, made statements, suggesting that three persons, named Vinay Kumar, Sunil Kumar and Malkan Devi, had knowledge of some material facts about the commission of the crime and their evidence was relevant. These three persons were not examined by the police during investigation. State moved an application, under Section 311 of the Code of Criminal Procedure, for summoning the abovenamed three persons, as its witnesses. While allowing the application, learned Sessions Judge has directed that first the Investigating Officer of the case shall record their statements, under Section 161 of the Code of Criminal Procedure, and the copies of the said statements shall be supplied to the accused persons and only thereafter those witnesses will be summoned as witnesses of the prosecution. This order of the …2… Cr.MMO No.62/2009 learned Sessions Judge is patently illegal and contrary to the provision of Section 311 of the Code of Criminal Procedure. Therefore, I do not think that before passing an appropriate order, in the matter, notice should go to the other side. Once the learned Sessions Judge came to the conclusion that the abovenamed three persons were material witnesses and their testimony was likely to support the prosecution case, which is based on circumstantial evidence, it should have straightway allowed the application and summoned the three persons as witnesses and examined them in the Court. Directing that the said persons would first be examined by the Investigating Officer would amount to further investigation of the case, during the pendency of the trial. Section 311 does not pertain to further investigation of the case, but recording of additional evidence during inquiry, trial or other proceedings of the Court. In view of the abovestated position, the petition is allowed. Order of the Sessions Judge is modified, to the extent that the abovenamed three persons are not to be examined by the Police Officer, but they shall be summoned by the court and examined as witnesses of the prosecution, in the Court itself. In case, after the recording of examination-in-chief of these three witnesses, the defence counsel feels that he needs to consult the accused persons and have their specific instructions, some time may be given to the defence counsel, by adjourning the case, to prepare himself for cross- examining the witnesses, after seeking necessary instructions from the …3… Cr.MMO No.62/2009 accused persons. The order of the trial Court imposing costs of Rs.1,000/-, on the State, is also not justified, because the application had been moved soon after the two witnesses of the prosecution stated that the abovenamed three persons were aware of some material facts, pertaining to the case. So, this part of the order of the trial Court is also set aside. Petition stands disposed of. June 15, 2009(sd) (Surjit Singh), J.