The main legal point established in the judgment is that the court may summon any person as a witness at any stage of the trial, and shall summon any such person if his evidence appears to be essential to the just decision of the case, as per the provisions of Section 311 Criminal Procedure Code.

1. - This petition under section 482 Criminal Procedure Code filed by the complainant petitioner is directed against the order dated 4.7.2001, whereby learned A.C.J.M. (Communal Riots), Jaipur, dismissed the application filed by the complainant under Section 311 Criminal Procedure Code on 1.6.2001.

2. The accused respondent Nos. 2 to 4 are facing trial for various offences under Indian Penal Code The substance of the offence was read-over to them on 18.7.94 and thereafter case was fixed for prosecution evidence. A perusal of the order sheet dated 14.12.1998 goes to show that Dr. Yogesh Anand Medical Jurist listed as a prosecution witness at serial No. 8 of the list of the prosecution witnesses was summoned through bailable warrant and the case was fixed for evidence on 6.2.99. On that day the prosecution evidence was closed by making an observation that this is an old case and all efforts were made to summon the witnesses.

3. Thereafter this application under Section 311 Criminal Procedure Code was moved with a prayer that Dr. Yogesh Anand should be summoned as his earlier summons were returned unserved by concerned S.H.O. and evidence of the medical jurist is essential. This application was dismissed vide impugned order on a simple observation that the said witness did not appear inspite of summons issued against him.

4. Learned counsel for the complainant petitioner contended that process was not issued against this witness in compliance of the order of the Court dated 14.12.98, hence there was no ground to close the prosecution evidence on 6.2.99. It was also argued that the evidence of this doctor was essential for just decision of the case and learned Magistrate did not consider the provisions of Section 311 Criminal Procedure Code Learned Public Prosecutor did not oppose this petition.

5. I have considered the submissions made by learned counsel for the complainant. It is made clear that the accused respondents did not appear before this Court after service of the notices. Learned counsel for the petitioner is factually correct that no process was issued in compliance of the order of Court dated 14.12.1998, hence there was no justification to close the prosecution evidence. Second contention is also well founded. Section 311 Criminal Procedure Code is in two parts. According to the first part, the court may, at any stage of trial, summon any person as a witness while second part says that the Court shall summon any such person if his evidence appears to it to be essential to the just decision of the case. The learned A.C.J.M. failed to consider the provisions of Section 311 Criminal Procedure Code and keeping in view the offence under Section 323 Indian Penal Code the evidence of the doctor seems to be essential for just decision of this case and thus the impugned order appears to be not proper.

6. Consequently, this petition is allowed and the impugned order dated 4.7.2001 is set-aside and the learned Magistrate shall issue process to the Medical Jurist Dr. Yogesh Anand through concerned S.H.O. and also the concerned S.P. with a D.O. letter and the witness is directed to appear before the trial court on the date fixed by the Court.

7. Record of the trial court be sent back within a week from today.Petition allowed.

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