MANDHOLI KALA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The point involved in this revision petition is squarely covered by a decision of this Court in Didar Singh v. The State of Punjab. During the course of the trial of the case against the petitioner under S.9 of the Opium Act, the prosecution had made an application under S.311, Criminal Procedure Code before the Additional Chief Judicial Magistrate Bhiwani, alleging therein that there was some ambiguity in the affidavits filed by Mam Chand Constable and Ram Bilas Moharrir Head-Constable and that the same could be removed by summoning Budh Ram, Constable. This application was hotly contested by the defence while pleading that Budh Ram Constable had Appellant not been cited as a prosecution witness and as such he could not be examined under S.311, Criminal Procedure Code. It was also alleged that the application was moved at a very late stage. The trial Court, however, allowed the prayer of the prosecution for summoning Budh Ram, Constable as per the impugned order. This revision petition seeks to challenge the said order.

(2.) As already noticed, the point as to whether Budh Ram Constable, whose affidavit has not been tendered in evidence should be allowed to be summoned by the prosecution at such a late stage had been considered in Didar Singhs case (supra), wherein it has been held that such a prayer ought not to be allowed as it would tentamount to the filling in of the lacunae of the prosecution case to the detriment of the accused ram in agreement with the view expressed in the aforesaid authority. Mr. Jatinder Sharma appearing for the respondent has opposed this revision by contending that the trial Court has unfettered discretion to allow such evidence at any stage during the trial and cited a Division Bench decision of this Court in Sukhdev Singh v. The State of Punjab. I have perused this authority and find that the facts of that case are distinguishable and the ratio thereof is not at all applicable to the facts and circumstances of this case.

(3.) For the foregoing reasons I allow this revision and set aside the order dated November 8, 1983, passed by the Additional Chief Judicial Magistrate. Bhiwani, summoning Budh Ram as a Court witness. Petition allowed