The main legal point established in the judgment is the discretionary and mandatory aspects of S.311 of Cr.P.C., emphasizing the need for judicious exercise of power and the requirement for the evidence to be essential to the just decision of the case.

ORDER :

This petition u/S 482 of Code of Criminal Procedure, 1973, has been filed by the applicant/accused being aggrieved by order dated 08.11.2023 passed by II Additional Sessions Judge, Manawar, Distt. - Dhar (M.P.) in ST No.67/2022, whereby the learned trial Court has dismissed the application u/S 311 of Cr.P.C. filed by applicant.

2. Facts giving rise to this petition are that S.T. No.67/2022, offence punishable u/S 294, 323, 324, 506(II) and 302 r/w 34 of IPC and Section 25(i) (b)(b) of the Arms Act is pending before the trial Court against the applicant. During prosecution evidence, Pradeep (PW-1) and Lakshmibai (PW-3) were examined on 16.02.2023 and 29.03.2023 respectively. Thereafter, on 20.09.2023, the applicant had filed an application (Annexure-6) u/S 311 of Cr.P.C., which was rejected by the learned trial Court.

3. Learned counsel for the applicant submits that previous counsel for the applicant could not perform effective cross-examination of the witnesses Pradeep (PW-1) and Lakshmibai (PW-3) in respect of sequence of incident of reaching police station from the place of incident, from police station to Manawar Hospital, refer of the injured/deceased from Manawar to Badhwani Hospital and admit over there, date of death during treatment, alongwith on other subjects i.e., nature of injury of injured person and animosity between the parties.

4. It is also submitted that for just disposal of the matter, the aforementioned facts must be cross-examined from the witnesses wherein the learned trial Court has failed by rejecting the application without considering the same. Therefore, it is prayed that the impugned order be set aside. Learned counsel has placed reliance in the cases of Dinesh V State of M.P. [1995 (II) MPWN 73]; Uday Singh V State of M.P. [2004 (I) MPWN 140] and Dinesh V State of M.P. [1991 (I) MPWN 14].

5. Learned counsel for the State/respondent has vehemently opposed the prayer advanced by the learned counsel for the applicant and submitted that both the prosecution witnesses have been elaborately cross-examined by the previous defence counsel. This petition has been filed just to cause inordinate delay. Therefore, the petition deserves to be dismissed.

6. I have heard learned counsels for both the parties at length and perused the record.

7. It is apposite to reproduce here Section 311 of Cr.P.C., which runs 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 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 plain reading of aforementioned provision, it is crystal clear that Court has been vested with power to summon any person as a witness at any stage, be it inquiry trial or other proceeding. This power is given to ensure justice by bringing up the best evidences on record before the court for just decision.

9. In the case of Dinesh Kumar (Supra), Coordinate Bench of this Court had observed that discretion to recall witness should be exercise judiciously, wherein witnesses could not be effectively cross examined by junior counsel therefore, witness should be recalled. In the case of Uday Singh (Supra), it has been observed by Coordinate Bench of this Court that important circumstance left in cross-examination, hence, prosecution witness should be recalled for cross-examination and power should be exercised for just decision of the case. In the case of Dinesh Kumar (Supra), Coordinate Bench of this Court has held that S.311 of Cr.P.C., is in two parts, former is discretionary while latter is mandatory. Presence of eye-witness is disputed, hence, witness should be called for further cross-examination.

10. The Apex court in the ca