Additional Evidence--Re-Examination of Witness--Allowing of an application u/s 311 CrPC does not amount to review of order for closing of evidence

Anil Kshetarpal, J.

By way of this petition under the complainant has challenged the order dated 01.03.2016 passed by the learned Judicial Magistrate 1st Class, Safidon as also the order passed by the learned Additional Sessions Judge dated 18.07.2017, whereby the revision petition has been dismissed against the order dated 01.03.2016 being not maintainable.

2. Some facts are required to be noticed. On the complaint of petitioner, FIR No.169 dated 03.10.2012 under Sections 148, 149, 323, 324 and 506 of the Indian Penal Code was registered at Police Station Pillukhera against five persons including the private respondents for inflicting injuries to the present petitioner and two others. After completion of the investigation, challan was filed. Charges were framed and trial is pending before the court of Judicial Magistrate 1st Class, Safidon.

3. Petitioner pleads that he received injuries and he was taken to local hospital from where he was referred to Post Graduate Institute of Medical Sciences, Rohtak, where medico-legal report was prepared by Dr.Mahesh and x-ray report was required to be proved. For that purpose, it was necessary to examine Dr.Mahesh and Dr.Vinay Mahir. However, the learned trial court dismissed the application under Section 311 of the Code of Criminal Procedure on the ground that granting opportunity to prosecution for leading evidence would amount to review of order which is not permissible.

4. It may be noted that petitioner has annexed three zimni orders passed by the learned trial court. First order is dated 11.12.2015 when after noticing that no prosecution witness is present, the court adjourned the case for further cross-examination of the prosecution witness No.4 and for remaining evidence of the prosecution. Thereafter, on 05.01.2016, the court noticed that summons issued to prosecution witnesses namely Dr. Rahul and Constable Mandeep Singh have been received back duly served but these witnesses are not present. The court ordered issuance of bailable warrants for Dr.Rahul and Naresh, whereas non-bailable warrants were issued for Constable Mandeep Singh. However, on the next date of hearing without recording as to what had happened to the bailable or non-bailable warrants after examining four prosecution witnesses, the prosecution evidence was ordered to be closed.

5. As noticed above, complainant filed an application under Section 311 of the Code of Criminal Procedure to permit examination of Dr.Mahesh from PGIMS Rohtak for proving medico-legal report and Dr.Vinay Mahir for examining x-ray of the injured.

6. Learned trial court dismissed the application as noticed above on the ground that allowing of such application would amount to review of order closing the evidence.

7. This Court has heard the learned counsel for the parties at length and with their able assistance gone through the documents filed.

8. Section 311 of the Code of Criminal Procedure enables the Court to 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 at any stage of any enquiry, trial or other proceedings under the Code of Criminal Procedure if evidence appears to be essential to the just decision of the case. The emphasis of the Legislature is with respect to just decision of the case. The effort of the courts must be to administer substantive justice rather than scuttle the justice on the technicalities. The object for making provision under Section 311 of the Code of Criminal Procedure is to do substantive justice between the parties. For this purpose, the Courts have been empowered to summon any person as a witness or recall or re-examine any person already examined at any stage.

9. Learned counsel for the respondents-accused has submitted that if the application is allowed, it would amount to review of the order closing the evidence and, therefore, not permissible. He has relied upon a judgment passed in the case of Hari