The main legal point established in the judgment is the wide discretionary power of the court under Section 311 of the Cr.P.C. and the duty to determine the truth and render a just decision, as well as the principles to be kept in mind while exercising the power under Section 311 Cr.P.C.

JUDGMENT

Arun Kumar Tyagi, J. (Oral) - The petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C) for quashing of order dated 07.02.2017 passed in Criminal Revision No.247 of 2016 by the learned Additional Sessions Judge, Ambala whereby order dated 30.11.2016 passed by the learned Additional Chief Judicial Magistrate, Ambala dismissing application under Section 311 of the Cr.P.C. was set aside and application under Section 311 of the Cr.P.C. was allowed.

2. Pursuant to registration of FIR No.79 dated 14.06.2010, SHO, Police Station Barara, Ambala investigated the case and on completion of investigation charge-sheeted the petitioner-Randhir Singh and his co-accused to face trial for alleged commission of offences punishable under Sections 148, 149, 323, 324, 452 and506 of the Indian Penal Code, 1860 (for short 'the IPC). Charges were framed on 04.04.2011. Prosecution witnesses cited in the list of witnesses were examined and prosecution evidence was closed on 02.02.2016. Statements of accused were recorded. Defence evidence was also closed. While the case was fixed for arguments, application under Section 311 of the Cr.P.C. was filed by the prosecution for seeking examination of Dr. Priyanka to prove the Radiological Reports.

3. The said application was dismissed by learned Additional Chief Judicial Magistrate, Ambala vide order dated 30.11.2016 on the ground that the application, filed at a highly belated stage, being a device to fill up the lacuna could not be allowed and rights of the accused for fair and speedy trial could not be allowed to be defeated due to fault of the prosecution. Aggrieved by the order dated 30.11.2016, the injured filed the Revision Petition against the same which was allowed by learned Additional Sessions Judge, Ambala holding that examination of Dr. Priyanka was necessary and no prejudice would be caused by her examination to the accused who would get opportunity to cross-examine her. The said order has been challenged by the petitioner by filing the present petition under Section 482 of the Cr.P.C.

4. I have heard arguments addressed by learned Counsel for the petitioner, learned Counsel for the injured and learned State Counsel and have gone through the relevant record.

5. Learned Counsel for the petitioner has argued that the occurrence took place on 14.06.2010. After giving numerous opportunities, the prosecution closed its evidence on 02.02.2016. When the case was fixed for arguments, application under Section 311 of the Cr.P.C. was filed at a highly belated stage. Dr. Priyanka was not cited as a witness in the list of prosecution witnesses and could not be allowed to be examined to fill up the lacuna. Therefore, the impugned order suffers from material illegality and the same may be quashed. In support of his arguments learned Counsel for the petitioner has placed reliance on the observations made in judgments rendered by this Court in CRM-M-21919 of 2008 titled Harish Kumar and others vs. State o/Haryana and another decided on 18.04.2009 and CRM-M-17282 of 2014 titled Harbinder Singh and others vs. Jaspal Singh and others decided on 06.01.2015.

6. On the other hand, learned Counsel for the injured and learned State Counsel have submitted that Dr. Priyanka was not cited as witness in the list of prosecution witnesses due to oversight. Examination of Dr. Priyanka is necessary for just decision of the case and the same will not amount to filling up of any lacuna. The impugned order does not suffer from any material illegality or irregularity. Therefore, the present petition may be dismissed. In support of their arguments learned Counsel for the injured and learned State Counsel have placed reliance on the observations made by Hon'ble Supreme Court in Mohanlal Shamji Soni vs. Union of India and another: 1991(3) RCR (Criminal) 182; Mannan Sk. and others vs. State of West Bengal and another : 2014 (4) RCR (Criminal) 617 and Manohar Praj