CRM No. M-28042of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-28042of 2010 Date of Decision : October 18, 2011 Mike Khosla s/o S.R.Khosla .... PETITIONER Vs. State of Punjab and another ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Sandeep Arora, Advocate, for the petitioner. Mr. G.S.Brar, AAG, Punjab. None for respondent No. 2. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) The present petition under Section 482 Cr.P.C. has been filed by the petitioner, who is a complainant in FIR No. 92 dated 18.05.2005 under Sections 420, 465, 468, 471 IPC, Police Station Division No. 8, Jalandhar for setting aside order dated 27.08.2010 (Annexure P-2) passed by the Judicial Magistrate Ist Class, Jalandhar, vide which application under Section 311 Cr.P.C. filed by the prosecution for summoning/recalling the complainant and other prosecution witnesses was dismissed. CRM No. M-28042of 2010 2 It is the contention of the counsel for the petitioner that the case of the prosecution would fail if the petitioner, who is a complainant, and other witnesses are not examined/recalled. As a matter of fact, the prosecution evidence was closed vide order dated 16.07.2010 and it is thereafter that the present application has been moved by the prosecution for concluding the evidence. Counsel further contends that one opportunity may be granted to the prosecution to conclude its evidence. He contends that an application under Section 311 Cr.P.C. can be moved at any stage for recall of the witnesses for re-examination or for summoning the other witnesses. Reliance has been placed on a judgment of the Supreme Court in the case of Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd, 2008 (3) RCR (Criminal) 897 and a Division Bench judgment of the Kerala Hgh Court in the case of Sree Venkatadeswara Enterprises vs. G. Rajasekharan Nair, 2006 (4) RCR (Criminal) 993. Despite notice issued to the accused-respondent No. 2 Sham Sunder and he being duly served, none has put in appearance on his behalf. I have heard counsel for the petitioner and have gone through the records of the case with his able assistance. A perusal of order dated 27.08.2010, which is impugned in the present petition, indicates that the FIR was registered on 18.05.2005, challan was presented on 18.10.2005 and thereafter, charges were framed on 11.07.2007. It is not a case where no prosecution evidence has been recorded, as a matter of fact, three witnesses have already been examined as PW1, PW2 and PW3. Complainant, the petitioner herein, namely, Mike Khosla were duly served but the complainant did not come present despite service. Many times, bailable warrants were issued to the CRM No. M-28042of 2010 3 complainant but still he did not put in appearance. Similar was the position with regard to the other witnesses who were cited in the list of witnesses filed by the prosecution. Not only the Sessions Judge but the office of the Senior Superintendent of Police has also issued bailable warrants and even through the Commissioner of Police, bailable warrants were issued but still the prosecution witnesses were not coming forth. 13 effective opportunities were granted to the prosecution during the period of 3 years after the framing of charges on 11.07.2007 but still evidence was not forthcoming for the prosecution. Faced with this situation, the Court had proceeded to close the evidence of the prosecution vide order dated 16.07.2010. Thereafter, the statement of the accused under Section 313 Cr. P.C. was also recorded and the case was fixed for defence evidence when the present application under Section 311 Cr.P.C. was filed by the prosecution. The Court, while deciding an application under Section 311 Cr. P.C., has to go by the facts and circumstances of the case. If the prosecution has a right to produce its evidence, the accused also has an equally important right of speedy trial and in the present case, this right of the accused has been violated, therefore, the application under Section 311 Cr.P.C. of the prosecution for additional evidence has been rightly dismissed by the trial Court. There can be no dispute with regard to the submission of the counsel for the petitioner that the Court can invoke its powers at any time while exercising its jurisdiction on an application moved under Section 311 Cr. P.C. and, therefore, the judgments, which have been relied upon by the counsel for the petitioner which support this proposition, cannot be said to be not supporting the claim of the petitioner but the balance of equities has to be maintained by the Court while deciding such an application which CRM No. M-28042of 2010 4 would further show that no prejudice is caused to either of the parties. The basic intent and purpose of Section 311 Cr. P.C. is the interest of justice and the satisfaction of the Court. While doing so, the trial Court has rightly taken into consideration the relevant facts and order dated 27.08.2010 (Annexure P-2) has been passed by the Judicial Magistrate Ist Class, Jalandhar, in accordance with law, which does not call for any interference by this Court. Therefore, the present petition is hereby dismissed. (AUGUSTINE GEORGE MASIH ) October 18, 2011 JUDGE pj