IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM M-30073 of 2010 Date of Decision:5.5.2011 Raju and another .... Petitioners Versus State of Haryana .... Respondent CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. B.D. Sharma, Advocate for the petitioners. Mr. Amit Rana, D.A.G. Haryana. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J.(Oral) The present petition has been filed under Section 482 Cr.P.C. for setting aside the order dated 31.8.2010 passed by the learned Sessions Judge, Panchkula, whereby the Court has summoned Bimlesh and her husband Bitto to appear as witnesses in case FIR No.84 dated 9.6.2009 under Sections 306/34 IPC at Police Station Pinjore, District Panchkula. While praying for setting aside the aforesaid order, learned counsel for the petitioners contended that the PW-7 Jai Singh brother of deceased, in order to prove charges of harassment at the hands of the petitioners was examined. The prosecution evidence is complete and therefore, the trial Court could not have summoned the sister of the deceased namely Bimlesh and her husband Bitto at this late stage as the same would amount to filling up the lacuna. Secondly, the prosecution has concluded his evidence. The statement of the accused-petitioners under Section 313 Cr.P.C. CRM M-30073 of 2010 -2- have already been recorded and the accused-petitioners have also closed their defence evidence. As such, their defence are known to the other side. Thus, the evidence of said witnesses would cause prejudice to the petitioners. They will not be able to effectively cross examine them. Moreover, the said witnesses would depose after having been fully prepared to face the cross examination and after having been fully tutored by the public prosecutor about the tenor of the cross examination, which they would be put to during the cross examination. This would materially prejudice the petitioners and vitiate the entire trial. Learned counsel appearing on behalf of the State while opposing the present petition submitted that the order passed by the Sessions Judge was in accordance with law and therefore, there is no scope to interfere with the same especially keeping in view the facts and circumstances of the present case. Heard. It is admitted that the complainant-Ramwati mother of the deceased has since died before her examination. As such, the prosecution produced Jai Singh brother of the deceased as PW-7. Jai Singh in cross examination deposed that he had not visited the house of his sister for the last 4-5 years. Whereas, his other sister namely Bimlesh and her husband used to visit Smt. Rano after every 15 days. It was in view of this that the learned Sessions Judge deemed it appropriate to exercise his power under Section 311 of the Code of Criminal Procedure and summoned the said witnesses for just and proper adjudication of the case and for arriving at the truth. Section 311 of the Code of Criminal Procedure reads as CRM M-30073 of 2010 -3- 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, through 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 same makes it clear that additional witness can be summoned even though he was not earlier summoned as a witness and if his evidence is essential for the just decision of the case. Hon'ble the Supreme Court in the case of Hanuman Ram v. The State of Rajasthan and others 2008(4) RCR (Criminal) 823 has in fact while interpreting the powers under Section 311 of Cr.P.C. held that Section 311 Cr.P.C. 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 present 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 CRM M-30073 of 2010 -4- 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, 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.” Especially taking into account the facts and circumstances of the present case wherein the complainant had died before her examination and other witness namely Jai Singh, who appeared before the Court, has specifically stated that the true facts are better known to his sister Bimlesh and her husband Bitto, who CRM M-30073 of 2010 -5- were regularly visiting the house of the deceased, the said witnesses were necessary to be examined. In view of the above, the present petition is dismissed being devoid of merit. However, nothing said herein above shall have no bearing on the merits of the case. 5.5.2011 ( NIRMALJIT KAUR ) rajeev JUDGE