Arvind Singh Sangwan, J.

Prayer in this petition is for setting aside the order dated 05.01.2018 (Annexure P13) passed by the Sub-Divisional Judicial Magistrate, Batala, vide which the application filed by the petitioner under Section 311 Cr.P.C. has been dismissed.

2. Brief facts of the case are that the petitioner has filed an application under Section 311Cr.P.C. for summoning of official In-charge of Finger Print Bureau, Phillaur as substitute to the prosecution witness, namely, Gurmit Singh as he had retired from service and the other witness has settled abroad. The application filed by the petitioner was opposed by the accused persons on the ground that charges were framed against them on 25.10.2013 and, thereafter, many opportunities were granted to the prosecution to conclude its evidence and finally it was closed by order vide order dated 05.08.2015.

3. It would be relevant to mention here that prior to passing of this order, the prosecution was granted last opportunity and the petitioner has also moved an application under Section 311 Cr.P.C. which was allowed vide order dated 05.08.2015 (Annexure P3) and some witnesses were ordered to be summoned and examined. Since the service of the summons could not be effected, the petitioner filed a petition bearing CRR-3255-2015 which was allowed vide order dated 29.03.2016 (Annexure P6) granting one more opportunity to the prosecution to take dasti summons of all the witnesses and produce them before the Court without any further delay. It was also observed in the order that no further opportunity shall be granted.

4. Counsel for the petitioner submits that the petitioner has examined as many as 08 prosecution witnesses and, thereafter, the trial Court vide order dated 29.08.2016 fixed the case for recording the statement of accused under Section 313 Cr.P.C. Thereafter, the petitioner filed second petition i.e. CRR-3465-2016 and prayed for one more opportunity to examine two prosecution witnesses i.e. Inspector Gurmit Singh, In-charge Finger Print Bureau Phillaur and one Kulwant Singh, PPS, Deputy Superintendent of Police (D) Batala, as it had come in the report of the process server that the address of Gurmit Singh was not known and Kulwant Singh was served through message on his mobile phone and thus the order, again closing the prosecution evidence, was not legally sustainable. The said petition was allowed vide order dated 30.08.2017 and again one more opportunity was granted to the prosecution to examine the aforesaid witnesses.

5. Counsel for the petitioner further submits that the petitioner has moved an application under Section 311 Cr.P.C. for summoning the witness i.e. official In-charge, Finger Print Bureau, Phillaur as substitute of witness Gurmit Singh.

6. The accused persons have contested the said application on the ground that the complainant/petitioner has already availed one more opportunity to lead his evidence. When the case was fixed for prosecution evidence, no such application was moved. Thereafter, the trial Court, vide order dated 05.01.2018 (Annexure P13), dismissed the application of the petitioner and fixed the case for defence evidence, as the statements of accused were already recorded under Section 313 Cr.P.C.

7. Counsel for the petitioner has further argued that since a report has come on the summons of the witnesses that Gurmit Singh has retired, therefore, the application was filed for substituting the witness with another witness of the Finger Print Bureau, Phillaur and since, Kulwant Singh, retired DSP has gone abroad, one more opportunity be granted to the petitioner to effect service on him.

8. In reply, learned senior counsel has opposed the prayer of the petitioner on the ground that the case was fixed for prosecution evidence in the year 2013 and till 2015, the petitioner has availed number of opportunities and vide order dated 19.08.2015 (Annexure P4), the evidence of the prosecution was closed noticing that the case pertains to the