CRR No. 217 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 217 of 2011 Date of Decision: 31.05.2011 Muddin & Anr. ...Petitioners Vs. State of Haryana & Ors. ...Respondents BEFORE: HON'BLE Ms.JUSTICE NIRMALJIT KAUR Present: Mr.Sarfraj Hussain, Advocate, for the petitioners. Mr.Sidharath Sarup, DAG, Haryana. Mr.Prashant Bhardwaj, Advocate, for respondents Nos. 2 to 7. --- Nirmaljit Kaur, J. (Oral) This revision has been filed against the order dated 7.01.2011 passed by the learned Sub Divisional Judicial Magistrate, Punhana vide which application under section 311 of the Code of Criminal Procedure (for short the Code) filed by the prosecution was dismissed. Learned counsel for the petitioner contends that discharge summary was prepared by Dr.Alakh but Dr.Alakh was not cited as a witnesses in the list of witnesses by the prosecution. The prosecution evidence was closed vide court order on 13.12.2010. Said medical report CRR No. 217 of 2011 2 was essential for just decision of this case and Dr.Alakh was therefore, required to prove the said record. However, said application was dismissed on the ground that Dr.Alakh was duly cited as a witness and still the prosecution has not examined him in spite of various opportunities and moreover, the application was belated and allowing the application will amount to review of earlier order. Learned counsel for the petitioner contends that it was Dr.Alka who was cited as a witness and not Dr.Alakh. The arguments raised by the learned counsel for the petitioner that it was Dr.Alka who was cited as witness and not Dr.Alakh, is not made out. Nobody has disputed the fact that the name of witness cited along with the challan was Dr.Alakh and not Dr.Alka. It is also an admitted position that Dr.Alakh had prepared the discharge summary. Section 311 of the Code 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 as 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 Section 311 dearly shows that a witness can be CRR No. 217 of 2011 3 summoned at any stage of the trial or after trial in case the same is necessary for just and proper decision of the case Hon'ble Supreme Court in the case of Hanuman Ram V. The State of Rajasthan & Ors. 2008 (4) RCR (Criminal) 823, has in fact while interpreting the powers under Section 311 of Cr.PC held that Section 311 makes it mandatory for the Court to summon a witness in case the said witness was necessary for the just and proper decision to the facts of the case. The Court further 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 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, inquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or inquiry. In Section 311 the significant expression that occurs is “at any stage of inquiry or trial or CRR No. 217 of 2011 4 other proceedings 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.” Coming back to the present case, it is not disputed that Dr.Alakh is necessary to be examined for proper and just decision. In view of above, present revision petition is allowed and the impugned order dated 7.1.2011 passed by the learned Sub Divisional Judicial Magistrate is set aside. The trial court shall now proceed for summoning of Dr.Alakh. Petitioner herein shall supply the correct address of Dr.Alakh. The petitioner also undertakes to serve Dr.Alakh dasti. (Nirmaljit Kaur) 31.05.2011 Judge rp