The court has broad powers under Section 311 of the CrPC to summon witnesses at any stage if their evidence is essential for a just decision.

ORAL ORDER

The petitioner is before this Court calling in question an order dated 13.02.2024 passed in Spl.C.C.No.2108/2022, whereby the concerned Court rejects the application filed by the petitioner under Section 311 of Cr.P.C seeking further examination of PW-10.

2. Heard Sri.Shridhara C., learned counsel appearing for the petitioner, Sri.Rangaswamy R., learned HCGP appearing for respondent No.1 and Sri.Anandeepwar D R., learned counsel appearing for respondent No.2.

3. The facts in brief, germane are as follows:

The petitioner gets embroiled in a crime in Crime No.235/2022 for the offences punishable under Section 376 of IPC and Sections 4 and 6 of POCSO Act, 2012. The Police after investigation filed a charge sheet and crime is pending before the concerned Court as Spl.C.C.No.2108/2022. The issue in the lis does not concern the merit of the matter before the concerned Court. The petitioner files an application under Section 311 of Cr.P.C. In the proceedings, two applications emerged. One by the prosecution and the other by the petitioner both invoking Section 311 of Cr.P.C. The concerned Court vide its order dated 12.02.2024 allows the application filed by the prosecution and rejects the application filed by the petitioner. The petitioner being aggrieved by the said order is at the doors of this Court in the subject petition.

4. Learned counsel appearing for the petitioner submits that the Court has grossly erred in allowing the application of the prosecution at the same time rejecting the application filed by the petitioner on the ground that the matter was at the stage of the recording statement under Section 311 of Cr.P.C. If the application of prosecution is to be allowed, at that stage the application of the petitioner could not have been rejected, is what learned counsel would submit.

5. Per contra, learned HCGP would refute the submission to contend that allowing of an application under Section 311 of Cr.P.C is not a matter of right and matter was at an advanced stage and at that point and time, an application is preferred by the petitioner seeking further examination of PW-10. Learned HCGP would defend the action of the Court rejecting the application of the petitioner and allowing the application of the prosecution though they were on two different dates one on 12.02.2024 and the other on 13.02.2024.

6. The learned counsel appearing for respondent No.2/complainant would also toe the lines of the learned HCGP in seeking dismissal of the petition.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

8. The afore-narrated facts are not in dispute. The petitioner getting embroiled in a crime is the matter of record for the aforesaid offences. PW-10 is sought to be brought for cross examination by the petitioner on the score that he had to depose with regard to the DNA report that was produced before the Court as evidence and marked as Ex.P-27. Therefore, the petitioner sought examination of PW-10 only with respect to DNA report, that is rejected.

9. A perusal at the reason for rejection as found in the order is that the matter is at the stage of recording 311 statement and therefore, it cannot be permitted. The reason in the considered view of the Court fly foul of the what the Apex Court has directed in the case of VARSHA GARG V. STATE OF MADHYA PRADESH1, wherein it has held as follows:

"31. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court “may”:

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and (ii) Recall and re-examine