Crl.M.No.2755-M of 2008 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.M.No.2755-M of 2008 Date of decision: 15.12.2010 Het Ram ….Petitioner Vs. State of Haryana and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Pawan Gaur, Advocate for the petitioner. Mr. M.S. Sindhu, Addl.A.G, Haryana. Mr. S.N. Gaur, Advocate for respondent Nos.2 to 4. Jaswant Singh, J By filing the instant petition, petitioner has assailed order dated 23.8.2007 passed by the Judicial Magistrate, Ist Class, Faridabad whereby evidence of the prosecution has been ordered to be closed; further prayer is for issuance of direction to learned trial Court to secure the presence of Dr. Kamal Satyarthi as prosecution witness. This court while issuing notice of motion on 14.2.2008, noticed that as per the MLR, the petitioner had suffered seven injuries and he had been examined by Dr. Kamal Satyarthi but the prosecution has intentionally withdrew the testimony of said witness by deleting his name from the list of witnesses furnished by the Investigating Officer. Copies of zimni orders dated 29.5.2007 and 13.7.2007 (P.1 and P.2 respectively) and copy of Crl.M.No.2755-M of 2008 #2# summons dated 24.7.2007 (P.3) have already been placed on record. Learned counsel for the petitioner-complainant contends that the learned trial Court has erred in passing the impugned order whereby prosecution evidence has been ordered to be closed. It is submitted that the complainant is the sufferer and aggrieved party, who has suffered seven injuries at the hands of the accused-respondent Nos.2 to 4. It is further submitted that Dr. Kamal Satyarthi is very material witness and in case he is not examined then it will affect the prosecution case. Learned state counsel fairly concedes that the evidence of Dr. Kamal Satyarthi is necessary at this stage for proper adjudication of the case. After hearing learned counsel for the parties and going through the record of the case, this court is satisfied that the prayer of the petitioner is tenable for just and proper decision of the case. A perusal of summons dated 24.7.2007 (P.3) reveals that Dr. Kamal Satyarthi has noted on the summons as under: “I am not in service all the record handed over to the office of S.M.O Korali I shall appear before the court but kindly asked SMO Korali to send the record.” It is also clearly revealed in order dated 29.5.2007 passed by JMIC, Faridabad that name of Dr. Kamal Satyarthi has been inadvertently deleted from the list of witnesses. A further perusal of impugned order dated 23.8.2007 also shows that it was specifically contended on behalf of the complainant that Dr. Kamal Satyarthi had made a report on the summons that he was retiring and record be handed over to the office of SMO Kurali and that said Dr. Kamal Satyarthi whose name has been deleted from the list of witnesses is an essential and material witness to be examined being a Crl.M.No.2755-M of 2008 #3# Doctor, who had conducted the medicolegally examination of the complainant. It is not in dispute that MLR No.KS/Kurali/279 dated 16.8.1999 was prepared by said Dr. Kamal Satyarthi, Medical Officer, CHC, Kurali, District Faridabad regarding the examination of injured-petitioner Het Ram and name of said Doctor was deleted by the prosecution from the list of witnesses furnished by the I.O. It is also not disputed that as per MLR, petitioner has suffered seven injuries. It is also not doubted that a number of opportunities were afforded to the prosecution to conclude its evidence but the prosecution has failed to conclude the same, therefore, the evidence was ordered to be closed vide impugned order. Hon’ble the Supreme Court in its judgment reported as 1999 (3) RCR (Crl.) 440 Rajendra Prasad v. The Narcotic Cell through its Officer-in-Charge, Delhi has also held and reiterated that the power of the court is plenary to summon or even recall and re-examine any witness at any stage of the case even if evidence on both sides is closed, if the court considers it necessary for a just decision being dictated by exigencies of the situation, fair play & demands of justice. In the aforesaid circumstances, finding merit in the present petition the same is allowed. Impugned order dated 23.8.2007 passed by the Judicial Magistrate, Ist Class, Faridabad is set aside and the petitioner is given one effective opportunity to examine Dr. Kamal Satyarthi. In view of the fact that said Dr. Kamal Satyarthi has since retired, the Chief Medical Officer, Faridabad is directed to make available the entire record pertaining to the MLR to said witness. December 15, 2010 ( JASWANT SINGH ) manoj JUDGE Crl.M.No.2755-M of 2008 #4#