MAHAVIR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity, 'Cr.P.C') prays for quashing order dated 1.10.2004 passed by the Additional Sessions Judge, Rewari reversing the order dated 10.1.2002 of Additional Chief Judicial Magistrate, Rewari. The revision petition was allowed by holding that the application for adducing additional evidence under Section 311 Cr.P.C. filed by the complainant through public prosecutor was liable to be accepted. By way of additional evidence, Dr. Ashok Rathi and Dr. Ved Paul have been permitted to be summoned with relevant record bearing RC No. 958686 with a view to prove the report given by the Radiologist, PGIMS, Rohtak dated 31.10.1996 and discharge slip issued by Dr. Rajendra Prasad Centre of Ophthalmic, New Delhi with regard to injured Hoshiar Singh who is said to have lost his one eye. The learned Additional Sessions Judge has also found that the additional evidence was necessary to be adduced for just decision of the case.

(2.) BRIEF facts of the case are that FIR No. 279 of 1996 under Sections 324/34 IPC, Police Station Daruhera has been registered against the petitioners and they are facing trial. During the trial, prosecution evidence has been recorded and is closed. Thereafter, the complainant through the public prosecutor filed an application under Section 311 Cr.P.C. for summoning of Dr. Ashok Rathi and Dr. Ved Paul with relevant record bearing RC No. 958676. The application was dismissed by the trial Court at Rewari on the ground that the case was at the stage of defence evidence and there is huge delay. It has further been observed that the accused-petitioner cannot keep suffering the agony of criminal trial due to negligence of the prosecution and the permission to adduce additional evidence if granted at this belated stage would tantamount to start of de novo trial.

(3.) MR . Ajai Tewari, learned counsel for the petitioners has argued that on proper exercise of discretion, the trial Court has rightly dismissed the application and the same cannot now be allowed by the learned Additional Sessions Judge in exercise of jurisdiction under Section 397 Cr.P.C. The learned counsel has also argued that once the evidence of the prosecution has been closed, then it amounts to reviewing its own order by the Magistrate. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Hari Singh v. State of Haryana, 2002(2) RCR (Criminal) 316 and further argued that the power under Section 311 Cr.P.C. is not to be exercised to permit filling up of lacuna in the case of the prosecution to the disadvantage and prejudice of the accused-petitioners.