HARISH MOURYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY way of filing this revision petition, the petitioner has challenged order dated 7. 7. 2005 passed by the learned Addl. Sessions Judge No. 2, chittorgarh in Sessions Case No. 56/2004 by which application filed by the petitioner under Section 311, Cr. P. C. was allowed.

(2.) ACCORDING to facts of the case, challan was filed against the petitioner and six other persons for offences under Sections 323, 341 and 307, I. P. C. and during the course of trial eleven witnesses were examined on behalf of the prosecution and, after completion of the evidence of PW 11 Puran Singh, S. H. O. , an application was filed by the prosecution on 7. 6. 2005 under Section 311, Cr. P. C. for summoning one additional witness viz. , Dr. M. R. Agarwal, MR Baheti Hospital, Kota. Reply to the said application was filed on behalf of the petitioner and other accused persons. The learned trial Court allowed the said application vide its order dated 7. 7. 2005.

(3.) THE contention of the petitioner is that the trial Court has committed error while allowing the application filed by the prosecution under Section 311, Cr. P. C. and the trial Court has not taken into consideration the evidence of PW1 Rajendra Singh (investigating officer) and PW4 Dr. Rajeev saxena. According to the petitioner, both these witnesses have not named the witness so summoned by the trial court, therefore, the application filed under Section 311, cr. P. C. is after-thought because earlier pw9 Mukesh Samariya (Radiographer) and pw11 Pooran Singh, SHO were dropped as prosecution witnesses; but later on, they were examined in the Court. The main argument advanced by learned Counsel for the petitioner is that application under Section 311, Cr. P. C. cannot be filed by either of the parties and though the application was not argued before the trial Court on this ground nor that ground, was mentioned in the application, under Section 311, Cr. P. C. the court can exercise its powers for summoning the witnesses for proper adjudication. In support of his argument learned counsel for the petitioner has invited my attention towards the judgment of this Court reported in Prem Raj v. State of Rajasthan and Others and argued that in this case, at para 5, this Court has held that Section 311 of the criminal Procedure Code itself makes it clear that power has been given to the Court to examine or re-examine any person as witness if the court considers it necessary to do so for the just decision of the case. Further, it is argued that according to this section 311 is read with Section 165 of the evidence Act, it would be clear that power under Section 311, Cr. P. C. and Section 165, evidence Act is conferred on the Court and not on the parties, therefore, it is the Court alone which can exercise power under Section 311, Cr. P. C. If the court is of the opinion that it is necessary to do so for the just decision of the case, the examination and re- examination which is contemplated by section 311 of the Criminal Procedure Code and Section 165 of the Evidence Act is to be made by the Court and not by the Court for the purpose of enabling any party to examine or re-examine the witness It would be impermissible to do so. Of course, the Court has unfettered powers to examine and re-examine any witness under Section 311, cr. P. C. at any time in any inquiry or trial.