The power under Section 311, Cr.P.C can be exercised at any stage by the Court and is essential for the just decision of the case.

Fakhruddin, J.

1. Heard.

2. The applicants arc being prosecuted for the offence punishable under Section 306/34, IPC before the Fast Track Court, Janjgir in Sessions Trial No. 41/2003.

3. At the conclusion of the trial, an application under Section 311, Cr.P.C was filed by the prosecution stating that the Head Constable who had registered the Merg Intimation No. 67/2001 could not be included in the list of witnesses due to mistake. It was urged that the examination of the said Head Constable is material and necessary. The said application was opposed. However, the Trial Court arriving at a conclusion that the said witness is material and necessary allowed the application and the summons have been issued. Being aggrieved by the said order, the applicants have filed this petition.

4. Learned Counsel for the applicants contended that the Court below erred in holding that any amendment like adding the name of the witness in previously filed challan paper comes under Section 311, Cr.P.C, whereas there is no provision of amendment under Section 311 of Cr.P.C.

5. On the other hand, learned Counsel for the State opposed the contention and submitted that the addition of witness is not prohibited.

6. This Court in its order dated 14-8-2002 passed in M.Cr.C. No. 1341/2002 (Rajesh Kumar @ Ramjan Khan vs. State of C.G.), while referring to Page 58 of Lax Lexicon Sweet and Maxwell, wherein the word "amendment" has been defined, has held that the necessary corrections by way of amendment can be made at any stage of the proceedings. The definition of word "amendment" narrated in the said judgment is as follows:--

"Amendment means a correction of any errors in the writ or pleadings in actions, suits or prosecutions. The power of allowing amendments has been much extended by modern statutes and rules, but it will not be exercised to the prejudice of a party to the proceeding apart from this, it is in general a mere matter of costs. Amendment of proceedings :

(1) *** *** ***

(2) *** *** ***

(3) Criminal proceedings.-- Under the Indictment Act, 1915, the Court may amend a defective indictment unless such amendment can not be made without injustice. Quarter Sessions can amend the statement of grounds of appeal to them from Courts of Summary Jurisdiction upon such terms as to costs and postponement as they may think fit. As regards Courts of Summary Jurisdiction, the King's Bench Division can amend an order bad for want of form upon the return of a writ of certiorari. In these Courts, no objection to any information, complain or summons for any defect in substance or form is allowed, about if the party summoned has been deceived or misled by a defect, the justice may adjourn the hearing."

So far as amendment sought in this case is concerned, it is only an addition of the name of witness in the list of witnesses filed alongwith the challan papers. This amendment has been granted with a view to make the record proper, as in the previous list the names of nine witnesses were included and by adding the name of the Head Constable, who had registered the merg intimation, now there arc ten witnesses to be examined. Such an amendment is permissible.

7. Section 311 of Cr.P.C, which was earlier Section 540 in the old Cr.P.C is relevant and is quoted below :--

"Power to summon material witness, or exanimate person present.-- Any Court may, at any stage of any enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

On a plain reading of Section 311, Cr.P.C, it is evidently clear that the power can be exercised at any stage by the Court, It can be exercised at the behest of the accused, at the behest of the defence and even at the behe