CRR No.507 of 2009 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. Crl. Rev. No.507 of 2009 (O&M) Date of decision: January 08, 2010. Bhinder Kaur ...Petitioner Versus The State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. B.S. Sidhu, Advocate, for the petitioner. Mr. Shailesh Gupta, DAG, Punjab. Rajan Gupta, J (oral). Challenge in this petition is to order, passed by Judicial Magistrate Ist Class, Gidderbaha on 22nd January, 2009 (Annexure P-1), whereby he allowed the application filed by the prosecution under Section 311 Cr.P.C. for summoning Dr. H.N. Singh, ASI Kashmiri Lal and ASI Gurdev Singh as witnesses. One opportunity for examining them was granted by the court. It appears that Dr. H.N. Singh, Medical Officer, Civil Hospital, Gidderbaha medico-legally examined the injured (complainant) Baljit Kaur. His name was, however, not mentioned in the list of witnesses submitted by the prosecution. Resultantly, an application under Section 311 Cr.P.C. was moved, which was allowed on 6th May, 2003. However, inadvertently summons could not be issued to Dr. H.N. Singh. Prosecution evidence was closed on 27th November, CRR No.507 of 2009 2 2008. Another application was moved thereafter by the prosecution to summon Dr. H.N. Singh as a witness. This application was allowed by the trial court. The order passed, has been impugned in the instant revision petition. Learned counsel for the petitioner has argued that since prosecution evidence was closed by order dated 27th November, 2008, the trial court has wrongly allowed the instant application under Section 311 Cr.P.C. According to the counsel, this amounts to review of the order already passed by the court below. In support of his contention, he has placed reliance upon judgment reported as Keshav Choudhary vs. State of Bihar, 2001 (1) RCR (Criminal) 22. He has further argued that in any case, application under Section 311 Cr.P.C. for summoning Dr. H.N. Singh as a witness was earlier allowed in 2003, but prosecution failed to examine the said witness. Thus, the impugned order deserves to be quashed. Learned counsel for the State has, on the other hand, vehemently contended that it was due to inadvertence that summons could not be issued to Dr. H.N. Singh, due to which he could not be examined earlier. According to him, since Dr. H.N. Singh medico- legally examined the injured (complainant), his evidence is essential to just decision of the case. He has further submitted that allowing application under Section 311 Cr.P.C. cannot be termed as review of the order whereby prosecution evidence was closed. I have heard learned counsel for the parties and given CRR No.507 of 2009 3 careful thought to the facts of the case. It is evident that Dr. H.N. Singh conducted medico-legal examination on injured (Baljit Kaur) on 7th September, 2001. His name was, however, not mentioned by the prosecution in the list of witnesses. An application was, thus, moved for summoning him as a witness on 5th February, 2003 (Annexure P-2). This application was allowed by the court on 6th May, 2003. Even after the application was allowed, summons could not be issued to the said witness and evidence was ultimately closed on 27th November, 2008. It is thereafter that the instant application under Section 311 Cr.P.C. was moved by the prosecution on 8th December, 2008 for summoning Dr. H.N. Singh as a witness. Since Dr. H.N. Singh examined the injured-complainant (Baljit Kaur on 7th September, 2001 after the occurrence, needless to say that his evidence is essential to the just decision of the case. In my considered view, the trial court has committed no illegality in allowing the application of the prosecution for summoning Dr. H.N. Singh as a witness. The argument of learned counsel for the petitioner that allowing the said application would amount to review of the order dated 27th November, 2008, whereby evidence of the prosecution was closed, is devoid of force. In the judgment rendered as Jai Singh vs. Soma @ Som Nath and others, 2006 (4) RCR (Criminal) 547, this court observed as follows:- CRR No.507 of 2009 4 “8. The trial Court, in my considered opinion, erred in jurisdiction and in law, while dismissing the application. It erroneously construed that acceptance of an application, filed under Section 311 of the Cr.P.C., would require it to review its order, dated 16.8.2002. This inference, in my considered opinion, is unwarranted and unsustainable in law. Powers, conferred upon a Court, under Section 311 of the Cr.P.C., are in no manner circumscribed by an order directing closure of evidence. The expressions “at any stage of any inquiry, trial or other proceedings under the Cr.P.C.” appearing in Section 311 of the Cr.P.C. clearly suggest that this power can be invoked by a Court at any stage of any inquiry, trial or other proceedings under the Cr.P.C., subject, however, to an over-riding principle that the evidence, sought to be adduced, should appear to the Court to be essential for a just decision of the case, the paramount consideration being “just decision of a case”. To, therefore, construe an order directing closure of evidence as a bar to the exercise of powers, under Section 311 of the Cr.P.C. to be an application for review of the order closing evidence, in my considered opinion, would be unwarranted. Such an interpretation to the provision of Section 311 of the Cr.P.C., does not flow from the language used therein. The learned trial Court, therefore, committed an error of jurisdiction and law, while dismissing the application, filed by the petitioner. Consequently, the present petition is allowed and the order dated 23.11.2002 is set aside. The learned trial Court shall consider and decide the application, filed by the petitioner/complainant, under Section 311 of the Cr.P.C., afresh, in accordance with law. The parties, through their counsel, are directed to appear before the trial court on 9.10.2006..........” The apex court in the judgment reported as Zahira Habibullah Sheikh (5) v. State of Gujarat and others, (2006) 3 CRR No.507 of 2009 5 Supreme Court Cases 374 observed as follows:- “27. 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 to the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the 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 any 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 wider the power the greater is the necessity for application of judicial mind.” It is, thus, clear that the power vested in the court under Section 311 is vast. The same can be exercised at any stage of an inquiry or trial in case evidence of a witness appears to be essential to the just decision of the case. In the instant case, the witness, who conducted medico-legal examination on the complainant, is sought to be examined by the prosecution. It is, thus, clear that his evidence is essential for just decision of the case. It cannot be said that exercise of CRR No.507 of 2009 6 power under Section 311 Cr.P.C. would amount to review of the order passed by the trial court whereby prosecution evidence was closed. However, it cannot lost sight of that initially the name of this important witness was not mentioned by the prosecution in the list of witnesses and thereafter summons were not issued to him. The prosecution evidence was closed after it availed of thirty opportunities for leading evidence. The instant application was moved only after prosecution evidence was closed. Thus, there appears to be grave negligence on the part of the prosecution in moving the instant application at such a belated stage. The court below should have saddled the prosecution with costs for this lapse. The present revision petition is thus dismissed. One opportunity to examine the witnesses as directed by the court below shall be granted. This, however, will be subject to payment of Rs.10,000/- as costs by the State to the petitioner. The parties are directed to appear before the trial court on 2nd February, 2010. (RAJAN GUPTA) JUDGE January 08, 2010 'rajpal' To be referred to the Reporters or not: Yes / No