H.N. Sarma, J.

1. Challenging the legality ,validity and justifiability of the impugned order dated 13.7.2010 passed in Sessions Case No. 39(N)/09 by the learned Addl. District Sessions Judge, (FTC), Sankardev Nagar Hojai, the accused Petitioner has filed this revision petition under Section 401 of the CrPC.

2. Heard Mr. M. A. Sheikh, learned Counsel appearing for the accused/Petitioner. Also heard B. Gogoi, learned Addl. Public Prosecutor for the State of Assam and Mr. S. Rahman, learned Counsel appearing for the informant/victim.

3. The accused/Petitioner is facing trial of a sessions case filed by the Respondent No. 2, alleging commission of offence punishable Under Section 447/376 IPC, on the basis of a complaint filed by the Respondent No. 2.

4. Initially the complaint was filed in the court of the learned SDJM, Hojai and upon receipt of the complaint, the learned SDJM recorded the statements of the complainant and her witnesses under 202 Code of Criminal Procedure and upon perusal of the statements and having found that a prima facie case triable by the court of sessions has been made out, committed the case to the court of sessions for necessary trial. The learned Addl. Sessions Judge, FTC, Sankardev Nagar, Hojai, to whom the case was made over for trial, upon appearance of the parties and upon consideration of the materials on record framed charges against the Petitioner Under Section 447/376 IPC to which he denied and claimed to be tried.

5. During the course of trial prosecution examined five witnesses and after closer of the prosecution case the accused was examined under Section 313 CrPC, putting before him the circumstances that appeared against him which he denied. The accused declined to adduce any defence witness and the case was fixed for argument. At that stage an application Under Section311 Code of Criminal Procedure was filed on behalf of the complainant on 11.5.2010 praying for summoning the doctor who medically examined the complainant. It is pertinent to mention herein that on 24.6.2008 a medical certificate was submitted on behalf of the complainant before the court, which was issued by one Medical Officer, A. Alam (Lanka PHC Nagaon) who examined the complainant on 20.6.2008. The said certificate was accepted and brought on record by the learned trial judge to which no objection was raised by the defence.

The aforesaid application for calling upon examination of the doctor as PW in the case, was stiffly resisted by the Petitioner. However, the learned trial judge, vide impugned order dated 3.7.2010 refuting the objection of the Petitioner, allowed the application and passed an order to issue summon to the doctor to be examined in the case as a PW, which is the subject matter of challenge in the petition.

6. Challenging the impugned order Mr. Sheikh submits that the Petitioner at no point of time has disclosed that doctor A. Alam has medically examined her. There is also no mention about her medical examination either in her complaint petition or in her initial deposition or in her statement before the court. Accordingly, it is contended that the prayer has been made by the complainant only to harass the Petitioner. It is further contended that the power under Section 311 to call a witness for examination in a particular case is to be exercised by the court itself and not on the application filed by any party and in the instant case such a power having been exercised by the learned trial court on the prayer of the complainant, the same is an illegal exercise of power being devoid of jurisdiction. Further contention of the learned Counsel is that when the case has attained its final stage of argument the learned trial court ought not to have allowed the prayer of the complainant to call for further witnesses in support of the prosecution.

7. Mr. Gogoi, learned Addl. P.P. as well as S. Rahman, learned Counsel for the complainant resisting the submissions made by Mr. Sheikh and supporting the impugned orde