The main legal point established in the judgment is the discretionary nature of the power under Sec.311, Cr. P. C., the requirement for the evidence to be essential to the just decision of the case, and the right to speedy trial under Article 21 of the Constitution of India.

Amar Bir Singh Gill, J.

1. The petitioner has invoked the inhere it powers of this Court under Sec.482, Cr. P. C. for quashing of the order dated 12.2.1998 by which the Magistrate has allowed the examination of prosecution witnesses under Sec.311, Cr. P. C. whereas he had already closed the evidence of the prosecution.

2. The grievance of the petitioner, as narrated in the petition, is that on a statement made by Shiv Ram, FIR No.494, dated 9/10/1989 was registered against him and after investigation, the police submitted its, report under Sec.173, Cr. P. C. before the Judicial Magistrate 1st Class, Karnal on 3/2/1990. Charge sheet under Sections 323/324/325 read with Sec.34, IPC was framed on 16/8/1990 against him and his co-accused. The petitioner along with his co-accused did not plead guilty and claimed trial and prosecution witnesses were summoned for 23/7/1991. The petitioner and his co-accused continued to attend the Court on every adjourned date. However, the evidence of the prosecution was never produced despite availing repeated opportunities upto 30a.1997 when the evidence of the prosecution was closed by order. Thereafter, on 17/8/1997, Sumer Chand sb Shiv Ram filed an application under Sec.311, Cr. P. C. for producing the witness of the prosecution by way of additional evidence. The petitioner objected the application by filing reply on the ground that Sec.311, Cr. P. C. was not applicable to the facts of the case and the prosecution witnesses deliberately absented themselves to appear before the Court to harass the petitioner and his co-accused and at that stage prosecution witness could not be examined and to re-open the case on false and frivolous grounds. The Magistrate, however, passed the impugned order on 12/2/1996 allowing the application under Sec.311, Cr. P. C. for additional evidence which is now sought to be quashed by way of the present petition.

3. On notice of the petition, written statement has been filed on behalf of the State of Haryana wherein objection is raised that this petition is not maintainable and revision petition could have been filed besides that there is no illegality in the order under challenge. However, the factual position has not been disputed regarding pendency of the case for sufficient long time and non production of evidence by the prosecution.

4. I have heard Counsel for the parties at length.

5. The power conferred on a Magistrate for summoning material witness or examine person present under Sec.311, Cr. P. C. is described as under: p311 Power to summon material witness, or examine person present. Any Court may, at. any stage of any inquiry, 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 be essential to the just decision of the case.

6. A bare reading of the above section would show that it is in two parts. In the first part it gives discretion to the Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code to summon anyone as a witness or to examine any person present in Court or to recall and re-examine any person whose evidence has already been recorded. However, the second part is a rider in nature of mandate to the Magistrate to exercise the aforesaid power of summoning, examining or re-calling etc. only if the evidence of a witness so-called essential to the just decision of the case. The Supreme Court in Mohan Lal Shanyi Soni V/s. Union of India and Another, has given the scope of exercise of powers under Sec.311, Cr. P. C. by a Magistrate as under: However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require. and exercised judicially with circumspection and consistently with the provis