1. This petition under section 482 of CrPC has been filed against the order dated 14.9.2016 passed by Additional Sessions Judge (Special Judge M.P. Dacoity Avam Vyapaharan Prabhavit Kshetra Adhiniyam) Lahar, District Bhind in S.T. No. 2586/2016 by which the application filed by the complainant under section 311 of CrPC, for summoning one Jaiveer, has been allowed.

2. The applicant is facing trial for offences punishable under sections 302, 363, 364A of IPC and under section 11/13 of MPDVPK Act.

3. The facts of the case in short, which are necessary for the disposal of this petition, are that a boy namely Vikram had gone to his school on 13.8.2015 at 11:00 a.m. but thereafter he did not come back. Gum Insaan report was lodged, and later on the dead body of deceased Vikram was recovered from a well situated at Dikoli. The dead body was identified by the relatives of the deceased Vikram. The police after completing the investigation filed the charge-sheet against the applicant for the above mentioned offences. It is not out of place to mention here that the case is based on circumstantial evidence.

4. After the prosecution case was over and the statement of the accused under section 313 of CrPC was recorded, it appears that the complainant filed an application under section 311 of CrPC stating that Vimlesh (PW1) has stated in his evidence that Brijendra @ Jaiveer who is the resident of Dhanuk Ka Pura, P.S. Nayagaon, District Bhind had informed him that he had seen the deceased Vikram alive in the company of the applicant, therefore, it was prayed that Brijendra @ Jaiveer be called for his examination as a witness as it is essential for the just decision of the case.

5. Refuting the contention of the complainant, the applicant filed his reply and pleaded that Brijendra @ Jaiveer is a real brother-in-law (Sala) of Kamlesh (PW8), the father of the deceased Vikram. It was further stated that initially the prosecution had examined one Veer Kumar (PW7) to prove the circumstance of last seen together but as Veer Kumar (PW7) has not supported the prosecution case therefore, now the complainant wants to examine the real brother-in-law of Kamlesh in place of Veer Kumar. It was further stated that had Jaiveer seen the deceased for the last time in the company of the applicant, then he would have certainly informed the witnesses as well as the police, and the police would have recorded his statement. It was pleaded that in fact an attempt is being made to fill up the lacuna as Veer Kumar (PW7) has not supported the prosecution case.

6. The trial Court by the impugned order allowed the application on the ground that it is true the statement of Jaiveer was not recorded during the merg investigation as well as under section 161 of CrPC and his statement under section 164 of CrPC was also not got recorded. Similarly, in the statement of Vimlesh (PW1) recorded under section 161 of CrPC as well as under section 164 of CrPC this fact was not mentioned that Jaiveer had seen the Vikram in the company of the applicant. However, the application has been allowed only on the ground that in spite of the fact that Vimlesh (PW1) has stated in his examination-in-chief, that Jaiveer had informed him that he had seen the deceased in the company of the applicant but the applicant has not cross-examined Vimlesh (PW1) on this statement. Therefore the Court below came to the conclusion that for the just decision of the case it is essential to summon Jaiveer as a witness. Accordingly, the application filed by the complainant under section 311 of CrPC was allowed.

7. Before considering the facts of the case, it is essential to consider the basic principle underlying section 311 of CrPC Section 311 of CrPC reads as under :

“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 a