IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Miscellaneous No. M-30927 of 2010 (O & M) Date of Decision: August 02, 2011 Vijaylata .....PETITIONER(S) VERSUS State of Haryana & another .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Vijay Pal, Advocate, for the petitioner. Mr. B.S. Saini, Senior Deputy Advocate General, Haryana. Mr. Sumit Sangwan, Advocate, for respondent No.2. . . . AJAI LAMBA, J (Oral) 1. This petition challenges order dated 17.8.2010 (Annexure P-1) passed by the Judicial Magistrate Ist Class, Charkhi Dadri; order dated 4.9.2010 (Annexure P-2), also passed by the Judicial Magistrate Ist Class, Charkhi Dadri; and order dated 5.10.2010 (Annexure P-3) passed by the Revisional Court viz. Additional Sessions Judge, Bhiwani. Crl. Misc. No. M-30927 of 2010 [2] 2. Order dated 17.8.2010 (Annexure P-1) vide which evidence of the prosecution was closed by Court order, reads as under:- “No PW is present. Perusal of file reveals that charge in this case was framed on 1.4.2010. Since then, the prosecution has availed more than six effective opportunities for its evidence but has failed to conclude the same. In these circumstances, there is no ground to adjourn the case further for evidence of the prosecution, which stands closed by Court order. To come upon 20.8.2010 for recording the statement of accused under Section 313 Cr.P.C. Till then, he be kept in judicial custody.” 3. Learned counsel for the petitioner-complainant contends that the basis of passing the order extracted above, is erroneous. The order has been passed on the premise that prosecution has availed more than six opportunities for its evidence but has failed to conclude the same. 4. The orders ranging from 20.4.2010 till 13.8.2010 have been extracted in Para 3 of the petition. Perusal of the orders discloses that on 20.4.2010, three PWs were present and examined. On 4.5.2010, no PW was examined. On 17.5.2010, two PWs were present and examined. One PW, Head Constable, Suresh was given up. On 31.5.2010, no PW was present. Director, Forensic Science Laboratory (for short, ‘FSL’) was absent despite service and was summoned through bailable warrants. On 14.6.2010, accused was not produced by jail authorities, and therefore, evidence could not be recorded. On 16.6.2010, accused was produced and un-examined PWs were summoned for 21.7.2010. On the said date viz. 21.7.2010, two PWs were present and examined. On 13.8.2010, no PW was present. PW Jagat Singh was absent despite service and was summoned through bailable warrants. All Crl. Misc. No. M-30927 of 2010 [3] the un-examined PWs were summoned for 17.8.2010 with last and final opportunity, whereupon the impugned order, as extracted above, was passed. 5. It seems that subsequently, the prosecution filed an application under Section 311 Cr.P.C. for summoning Assistant Director, FSL, Madhuban, to prove the prosecution case. The application has been dismissed vide order dated 4.9.2010 (Annexure P-2) while saying that six opportunities had already been given to the prosecution and order of closure of evidence of the prosecution is revisable and there is no provision for review. 6. Revision was carried by the prosecution. Vide order dated 5.10.2010 (Annexure P-3), the said revision petition has been dismissed by the Additional Sessions Judge, Bhiwani, saying that the counsel for the petitioner had failed to point out any patent illegality and material irregularity in the impugned order, hence order of the Lower Court requires no interference in revisional jurisdiction. 7. By way of an application, under Section 311 Cr.P.C., the prosecution seeks examination of Assistant Director, FSL, Madhuban, so as to prove blood stained clothes which would go to the root of the matter in either establishing that crime has been committed or showing that crime has not been committed. The evidence becomes material also in view of the nature of offence viz. Section 377/ 506 IPC. 8. In the considered opinion of this Court, order dated 17.8.2010 (Annexure P-1) and subsequent order dated 4.9.2010 (Annexure P-2) have been passed de hors the relevant considerations. It Crl. Misc. No. M-30927 of 2010 [4] has not been considered by the Magistrate that substantial injustice would be caused in case Assistant Director, FSL, Madhuban, who has furnished the report, is not examined. The application filed under Section 311 Cr.P.C. could have been considered by the same Court and therefore order dated 4.9.2010 (Annexure P-2) is against legal principles. Additional evidence can be allowed by the same Court, if the facts and circumstances warrant. It cannot be construed as review of the earlier order viz. order dated 17.8.2010 Annexure P-1. Revisional Court has only seen legality of the order. Relevance of evidence has not been considered in the context of the charges framed against the accused. 9. Considering the totality of facts and circumstances of the case, in the considered opinion of this Court, manifest injustice would be caused if the witness, sought to be examined by the prosecution, is not allowed to be examined. 10. In view of the above, the petition is allowed. Order dated 17.8.2010 (Annexure P-1); order dated 4.9.2010 (Annexure P-2); and order dated 5.10.2010 (Annexure P-3) are hereby quashed. Prosecution would be entitled to one opportunity to examine the witness from FSL, Madhuban. 11. Incharge, FSL, Madhuban, is directed to ensure that the witness remains present in Court on the date for which he is summoned by the Trial Court. (AJAI LAMBA) August 02, 2011 JUDGE avin Crl. Misc. No. M-30927 of 2010 [5] 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?