JUDGMENT :

Ravi V. Malimath, J.

1. Aggrieved by the order dated 26.12.2017, passed by the trial Court, vide Annexure P-2, in dismissing the application filed under Section 311 of Cr.P.C., the complainant has filed this petition.

2. The case of the petitioner is that when the matter was pending consideration before the trial Court, the evidence of the prosecution was held to be closed. Thereafter, the matter was listed for recording the statement of accused under Section 313 of Cr.P.C. The said order closing the evidence of the prosecution was not challenged by the prosecution. Since evidence of the prosecution has been closed on the ground that the prosecution has failed to procure the attendance of the remaining prosecution witnesses, it would not be proper to allow the said application. On these grounds, the application was dismissed.

3. The learned counsel for the petitioner contends that the trial Court is expected to do ultimate justice in the matter. He further contends that the order passed by the trial Court is erroneous. That the application filed by the prosecution requires to be allowed. He further contends that an ample opportunity was granted to the prosecution in order to lead its evidence, but it has failed to procure the witnesses for the said purpose. Therefore, no more leniency can be shown to the prosecution in this regard. The same is disputed by the learned counsels for the respondents.

4. On hearing learned counsels, I'am of the considered view that an appropriate interference is called for. The record would indicate that by the order dated 08.06.2017, the evidence of the prosecution was closed on the ground that it failed to produce the prosecution witnesses. What requires to be considered is that the trial Court is expected to do complete justice to the parties. That dismissing an application merely on technical grounds, does not lead to dispensation of justice. Even, though by the order closing the evidence of the prosecution that was passed by the trial Court, in matters such as filing an application under Section 311 of Cr.P.C. to examine the prosecution witnesses, requires to be considered appropriately by the trial Court. Even, though there cannot be any strict formula as to how an application is to be considered, the broader principles of ensuring that justice is done not only to the accused but also to the complainant, requires to be borne in mind by the Courts.

5. In the instant case, I'am of the considered view that the rejection of the application will lead to injustice rather than justice. Therefore, I find that the rejection of the application, being bad in law, requires to be set aside.

6. For all the aforesaid reasons, the petition is allowed. The order dated 26.12.2017, passed by the Judicial Magistrate 1st Class, Court No. 4, Shimla, District Shimla (H.P.), in Case No. 24-2 of 2016/2012, is set aside. The application moved by the prosecution under Section 311 of Cr.P.C. is allowed. The trial Court to proceed further in the matter. Parties to appear before the trial Court without further notice on 20th August, 2021. The petition is disposed off.

7. Pending miscellaneous application is also disposed off.