CRM No. M 35846 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 35846 of 2009 Date of decision: 10.05.2011 Krishan Kumar ........ Petitioner Versus Dhian Singh .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Shiv Kumar, Advocate for the petitioner Mr. Saurabh Chugh, Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C for quashing of the order dated 11.11.2009 passed by the Judicial Magistrate Ist Class, Abohar, vide which, the application filed by the petitioner in complaint titled as Dhian Singh v. Dr. Krishan Lal Miglani bearing No. RBT 602 dated 01.02.2005/27.02.2009 permitting to take photograph of the signatures of the complainant Dhian Singh appearing on the various documents in the Court file for its examination and comparison by hand writing expert as per law has been dismissed. Brief facts of the case are that on 01.02.2005, a complaint was CRM No. M 35846 of 2009 2 filed on 01.02.2005 and the case was fixed for defence evidence on 16.12.2009. When the case was fixed for defence evidence i.e. evidence of the petitioner, the petitioner filed an application permitting him to take photograph of the signatures of complainant Dhian Singh appearing on various documents in the Court file for its examination and comparison by the hand-writing expert. The said application was filed on account the fact that one receipt dated 01.09.2004 bearing signatures of complainant Dhian Singh in Urdu script was produced in the evidence of defence witness - Bharat. The trial Court, however, dismissed the said application of the petitioner vide order dated 11.11.2009. While impugning the said order, learned counsel for the petitioner submitted that the petitioner filed the said application at the time when his own evidence was in progress and while the case was fixed for defence evidence. No prejudice is to be caused to the complainant -respondent if the petitioner is allowed to take the photograph of the signatures of the respondent from the original complaint and other documents which have come on the record and bearing the signatures of the said Dhian Singh. The said signatures are to be compared with the said receipt, Exb.D4, which is also on the record and necessary in defence for proper adjudication. Learned counsel for the respondent, on the other hand, submitted that the accused-petitioner never put receipt dated 01.09.2004 to the complainant when he was cross examined nor did he mention the said receipt in his statement under Section 313 Cr.P.C. As such, the application has rightly been declined. Heard. CRM No. M 35846 of 2009 3 Section 311 of the Code of Criminal Procedure reads as under:- “311. Power to summon material witness, or examine person present. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its 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.” A perusal of the Section 311 Cr.P.C, referred to above, gives vast powers to the Court to summon “any person” as a witness or recall or examine any witness if already examined “at any stage” of inquiry, trial or other proceedings. In the present case, the evidence of the petitioner is in progress. As such, it cannot be said that the said application was moved at belated stage. The accused petitioner has a right to lead his evidence in defence. It is also his right to examine the expert. The said order has resulted in declining the petitioner an opportunity to lead his evidence as per law. Hon'ble the Apex Court in the case of Hanuman Ram v. The State of Rajasthan and others reported as 2008 (4) RCR (Criminal) 823, laid down the object underlying Section 311 of the Code, which reads as under:- “7. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either CRM No. M 35846 of 2009 4 side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings,trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessity for application of judicial mind.” In the present case, the accused petitioner wants to examine the hand writing expert to prove that the signatures on the receipt dated 01.09.2004 are of complainant Dhian Singh which is necessary for adjudication of the case and to arrive at the truth. In view of the above, the petitioner is allowed to obtain the photograph of the disputed signatures appearing on the receipt in question and also the signatures of Dhian Singh-complainant appearing in the Court file for its examination and comparison by the handwriting expert. The petitioner is also allowed to examine the handwriting expert. In view of the above, the present petition is allowed in the above terms subject to the condition that he shall complete his entire CRM No. M 35846 of 2009 5 evidence within three months from the date of receipt of the certified copy of the order. (Nirmaljit Kaur) Judge 10.05.2011 mohan