Point of Law: Trial court has ample power to summon any person as witness for just decision of case.

JUDGMENT :

1. This application has been made by the accused applicant to quash the order dated 31/10/2008 passed by Additional Sessions Judge, Court No. 02, Shahjanpur in S.T. No. 799 of 2007 - State Vs. Harish Chandra and others, under Sections 304, 323 and 504 IPC. Police Station Pobayan, District Shahjahanpur, by which the learned Trial Court allowed the Application 13-B U/s 311 Cr.PC and summoned Maina Devi and Usha Devi as witnesses.

2. Heard Sri Pawan Kumar Dubey, learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the record.

3. In brief, facts of the case are that complainant Ramesh Chandra lodged NCR No. 62 of 2007; against Harish Chandra, Matadeen, Sangam and ram Kumar and after death of injured Pankaj, the NCR was converted into FIR U/s 304, 323 and 504 IPC. IO recorded the statements of the informant and so called eye witness Babu Ram and after investigation submitted Charge sheet against the applicant under the aforesaid sections on 05/05/2007. from the bare perusal of the charge sheet it is crystal clear that the statement of the Maina Devi and Smt Usha Devi were neither recorded U/S 161 Cr.P.C nor a single word is mentioned in the case diary regarding their presence at the alleged place of incident that's why their name have not been mentioned in the list of witnesses. During the trial statements of PW1 Ramesh Chandra, PW-2 Babu Ram and PW-3 Sukhlal have been recorded.

4. On 06/05/2008 both the proposed witnesses moved an application U/s 311 Cr.PC before ASJ Court no. 02 Shahjahanpur with the prayer that on 02/04/2007 at the time of the incident they were with Pankaj and they received injuries during the course of saving the deceased, they are the injured eye witnesses and were medically examined on 05/04/2007 in PHC. Original injury reports had been taken by the police. They are annexing its photocopies. Police did not made them (injured) witness under the connivance of the accused persons. Accused are influential persons who have got all the witnesses hostile. Therefore for the just decision of the case the applicants be summoned as witness.

5. An objection was invited and considered and thereafter by the impugned order, application 13-B has been allowed by the trial court concluding that there is injury report in support of the application under section 311 CrPC. For just decision of the case any witness can be examined or re-examined at any stage U/s 311 CrPC and any person can be summoned for evidence.

6. Learned ASJ has wrongly and illegally allowed the application and summoned them as witness which is highly unjust, improper and against the correct provision of the law. Hence, the application be allowed and the impugned order be quashed.

7. For Connivance section 311 CrPC is produced as under :-

"Section 311 in The Code Of Criminal Procedure, 1973.

311. 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 to be essential to the just decision of the case."

8. From the above, it is very much clear that there are two part of this Section. According to first part of the Section, the Court can exercise the power :-

(1) to summon any person as a witness, or.

(2) to examine any persons in attendance, though not summoned as a witness, or,

(3) to recall and re-examine any person already examined.

The second part, which is mandatory and imposes an obligation on the Court:-

(1) to summon and examine, or

(2) to recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case.

9. In Raja Ram Prasad Yadav Vs. State of Bihar and Anr., A.I.R. 2013 (SC) 3081, it has been held that it i