IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MMO No. 91 of 2008 Decided on: 3.3.2009. _________________________________________________ Shiv Kumar and another …….. Petitioners Versus State of H.P. …….. Respondent Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ? No. For the petitioners :Mr. Bhupinder Ahuja, Advocate. For the respondent :Mr. J.S.Guleria, Asstt. Advocate General. Surinder Singh, J (oral). The petitioner and others are facing the trial for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, in the court of Sessions at Chamba. The perusal of the case file shows that the case against the petitioner and others hinges upon the circumstantial evidence. Further the record reveals that the prosecution evidence stands closed on 26.4.2008 after examining 18 witnesses. The statements of the accused were also recorded on 13.05.2008. Thereafter they were called _____________________________________________________ Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes. upon to enter into their defence, but no defence evidence was led to this effect and their statements were recorded and thereafter the matter was adjourned for final arguments on 2.6.2008, on which date the arguments were heard and case was listed for the judgment on 25.6.2008. In the meantime, an application under Section 311 of the Code of Criminal Procedure was moved on 23.6.2008 for summoning two prosecution witnesses namely, Smt. Gorkhi wife of Shri Baldev Singh and Smt. Brahmi wife of Shri Kundan, residents of village Dadoga, who were given up by the prosecution. According to the accused, their examination was very material to reveal the truth and to arrive at a just and right conclusion. The application was resisted and contested by the State, on the ground that the accused did not avail the opportunity to adduce the evidence when called upon to enter into their defence and the application was moved at a belated stage after concluding the arguments. The learned trial court after hearing the parties dismissed on 25.6.2008 the said application mainly on the ground that the application was filed at a belated stage only to delay the proceedings. The petitioners herein are under-trial they have assailed the impugned order by sending his petition through the Superintendent (Jail), which has been treated as Cr.M.M.O. in this court. Since the petitioners were unrepresented, thus, Mr. Bhupinder Ahuja, Advocate was appointed on 4.12.08 as amicus curie in this case. The trial court record was requisitioned and the matter is finally heard. It is argued by the learned counsel for the petitioners that the witnesses sought to be examined are essential and material witnesses and the learned trial court could have summoned them irrespective the stage of the case as per the provisions of Section 311 of the Code of Criminal Procedure which fact has been repelled by the learned Assistant Advocate General, while supporting the impugned order. At the first blush, it seems to me on reading the impugned order that the learned trial court did not apply its mind to the provisions of Section 311 of the Code of Criminal Procedure. Section 311 of the Code which 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 proceedings under this Court, 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.” [Emphasis supplied] The first part gives purely discretionary power to the Criminal Court to enable it at any stage of an inquiry, trial or proceedings under this Code to: a) to summon any person as a witness or to examine any person in attendance though not summoned as a witness, or b) to re-call and re-examine any person whose evidence has already been recorded and the Court, if his evidence appears to the essential for the just decision of the case. The second part of the Section aforesaid is mandatory and compels the Court to take any of the above steps if evidence of any person appears to it to be essential for the just decision of the case.” In Iddar and others v. Aabida and another, 2007 (2) S.L.J.(SC) 1311 it has been held by the Supreme Court that this is a supplement provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord…….” Thus it is manifest that to administer justice to the parties, the limitation or the stage of the case is not a hurdle to examine or re-examine any witness, if it appears to the court that examination of such witness is essential for the just decision of the case. As already stated above, the entire case against the accused persons hinges upon the circumstantial evidence. If the prosecution has not examined its witnesses to prove a circumstance, it would cause a lacuna in the prosecution case, certainly its benefit would go to the accused; but however, where any of the party makes such a prayer to the court, it is incumbent upon the court to examine the matter within the above judicial para-meters. In the instant case, the learned trial court did not appreciate the fact whether the witnesses sought to be examined are essential for the just decision of the case. However, the record does not spell out nor it is contended in the application moved by the accused as to how the aforesaid witnesses, who were required to be examined, were material and essential for the just decision of the case. Therefore, the request of the accused cannot be acceded to. As such, the petition is dismissed. Before parting with the case, I would like to appreciate the labour put in by Shri Bhupinder Ahuja, Advocate to help the court in deciding the matter. Now let the record of the case be returned forthwith. The accused persons being under-trial prisoners, the learned trial court shall take up the appropriate steps to conclude the matter on its priority. March 03, 2009. (Surinder Singh), (Pds) Judge.