IMPORTANT POINT
The court established that under Section 311 of the Cr.P.C., the summoning of material witnesses is vital to prevent miscarriage of justice, even at advanced stages of trial.

ORDER :

1. The petitioner/complainant is before this Court challenging the order dated 26.03.2024 passed by the Additional Chief Judicial Magistrate, Bhilwara, dismissing the petitioner's application filed under Section 311 of Cr.P.C. to summon the lady constable who was on duty at the time of the incident. Revision Court order dated 04.04.2024 passed by the learned District and Sessions Judge, Bhilwara, dismissing the revision is also assailed herein.

2. Heard.

3. It is averred that along with the charge-sheet, a list of witnesses was submitted. One eyewitness, Vimla, was inadvertently not included in the list by the prosecution, prompting the filing of the application under Section 311, which was rejected. Hence, the present petition.

4. Learned counsel for the petitioner canvasses the eye-witness of the case i.e. Vimla, a lady constable, needs to be summoned as a witness for a just decision. Section 311 of the Code empowers the court to summon material witnesses even if not earlier summoned/named as witness. If there is any negligence or mistake in not examining a witness by the prosecution, the same will result in miscarriage of justice.

5. Per contra learned PP states that the impugned order does not warrant any interference as the trial is at an advance stage and is fixed for final arguments. Therefore, the present petition deserves to be dismissed.

6. Having perused both the impugned orders, it seems that the stage of the trial was since at the final arguments, the same seems to have weighed heavily on the mind of the learned Courts for not granting further time to summon the witness in question.

7. No doubt summoning of the witness at this stage would result in delay of the trial proceedings which are at the fag end, but what is also at the same time to be borne in mind is the fact that the witness which is sought to be summoned at this stage is a material witness as is borne out from the facts of the case.

8. She being the constable on duty at the relevant time and not only that, she is also stated to be the eye witness. It was in these premise that the said lady constable recorded the very first statement of the complainant after the incident in question.

9. Ordinarily, the complainant ought to have ensured that the said lady constable’s name is put in the list of prosecution/complainant’s witnesses, but on a query by the Court, learned counsel representing the petitioner/complainant submits that it was sheer lack of oversight on the part of the learned counsel representing the complainant before the Court below and for the said lapse, complainant ought not to suffer the consequences arising therefrom.

10. In view of the aforesaid candid admission by the learned counsel for the petitioner and keeping in view the larger interest of justice, the application of the petitioner filed under Section 311 of Cr.P.C. is allowed and the impugned orders are set aside. Petitioner/prosecution shall be given one effective opportunity to examine the aforesaid lady constable after she is summoned by the Court below.

11. It is further made clear that the instant order is not to be construed to mean that in case trial Court wishes to use its discretion to adjourn the matter due to the heavy pendency of work, then it is at liberty to do so if it so wishes.

12. Disposed of accordingly.

13. Pending applications, if any, shall also stands disposed of.