The discretionary power under Section 311 CrPC should be exercised judiciously and only if the evidence is essential to the just decision of the case.

JUDGMENT

Vinod S. Bhardwaj, J. - The present petition invokes the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') for raising a challenge to the order dated 14.07.2017 (Annexure P-6) passed by Judicial Magistrate First Class, Bahadurgarh, District Jhajjar, whereby the application under Section 246(6) and 311 CrPC filed by respondent No.2- complainant has been allowed in criminal complaint No.526 dated 19.11.2012 titled as 'Sunil Vs. Rati Ram and Others'.

2. Before adverting to the merits of the case, bare facts as are necessary to be taken into consideration are that respondent No.2-complainant filed an application under Section 156(3) CrPC before the Judicial Magistrate First Class Bahadurgarh, District Jhajjar. The said application was treated as a complaint case under Sections 323, 324, 506 and 34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). The respondent No.2-complainant led preliminary evidence examining three witnesses including himself. Thereafter, the preliminary evidence was closed on behalf of respondent No.2-complaint on 06.12.2008. The petitioner along with other co-accused was summoned to face trial for commission of the said offences vide order dated 28.08.2010 (Annexure P-2). Subsequently, pre- charge evidence was led by respondent No.2-complainant wherein the same 3 witnesses were examined again and upon consideration thereof charge under Section 323 IPC read with Section 34 IPC and Section 506 IPC was framed vide order dated 03.01.2014 (Annexure P-3). The counsel appearing on behalf of respondent No.2-complainant made a statement before the trial Court that the evidence led by him at the stage of pre-charge evidence may be read as part of the evidence after-charge. Counsel for the petitioner also made a statement that the cross examination already held at the pre-charge stage may also be considered to have been conducted as after-charge evidence. Resultantly, the evidence of the complainant was closed by the trial Court. Respondent No.2-complainant thereafter preferred an application under Section 246(6) CrPC read with Section 311 CrPC for examining additional evidence on the ground that the procedure prescribed in the Code of Criminal Procedure, 1973 has not been followed and that the complainant has a right to examine the remaining witnesses under Section 246(6) CrPC. The witnesses that the respondent No.2-complainant sought to examine are:-

1. Vikas son of Jiwan Lal

2. Bittu son of Jawala Prasad

3. Tilak Raj son of Jawala Prasad

4. Naresh son of Tara Chand

3. The aforesaid application was allowed by the trial Court vide order dated 14.07.2017 (Annexure P-6) and the said order is assailed in the present petition to have been passed illegally and without appreciating the statutory provision as well as the prejudice which is occasioned to the petitioner-accused.

4. Learned counsel appearing on behalf of the petitioner has argued that the trial Court has failed appreciate that the evidence of the parties was closed on a statement made by the counsel and that the said order was never challenged by either of the parties. Furthermore, the case was already fixed for defence evidence and that statement under Section 313 CrPC had already been recorded. The petitioner has thus disclosed his defence and that the permission so granted by the trial Court amounts to allowing the respondent No.2-complainant to make improvement upon his case and fill in the lacunae. It is further submitted that the witnesses sought to be examined by respondent No.2-complainant were already named in the list of witnesses furnished by respondent No.2-complainant and that the decision to not examine any more witness was a conscious decision. There is no emergence of any new fact that would necessitate allowing the application and even the application does not disclose any reason detailing why the respondent No.2-complainant chose not to examine the said witnesses