The main legal principle established is that the power under Section 311 Cr.PC should be exercised judiciously to ensure the just decision of the case and the discovery of truth, without causing prejudice to the accused.

JUDGMENT

Sandeep Sharma, J. - Being aggrieved and dis-satisfied with order(s) dated 24.9.2016, passed by the learned Special Judge (Forest), Shimla, in Case No. 36-S/7 of 2012, 37-S/7 of 2012 and 38-S/7 of 2012, titled "State of H.P. v. Jitender Kumar and Ors.", whereby application(s) filed under Section 311 of Cr.PC., having been filed by the respondent-State, came to be allowed, petitioner(s)- accused (hereinafter referred to as "the accused") has/have approached this Court in the instant proceedings filed under Section 397 Cr.PC, to set-aside the impugned order.

2. Facts, shorn of unnecessary details are that FIR against the accused was lodged on 8.12.2008, under Sections 409, 120B and 201 of IPC and 13 (1) (C), punishable under Section 13(2) of PC Act 1988, at PS SV&ACB Shimla, whereby three challans were put in before the learned District and Sessions Judge, Shimla, in the year, 2012, as case No. 36-S/7 of 2012, 37-S/7 of 2012 and 38-S/7 of 2012 and all the three cases/challans are being tried together. During the pendency of the aforesaid trial, prosecution filed application(s) under Section 311 Cr.PC., praying therein for summoning of witnesses whose names could not be mentioned as the witnesses at the time of filing of charge sheet (Annexure P-1). Learned court below vide impugned order dated 24.9.2016, allowed the aforesaid application and permitted the prosecution/State to examine four witnesses as named in para-2 of the application. In the aforesaid background, accused has approached this Court in the instant proceedings.

3. Shri Dalip K. Sharma, learned counsel for the petitioner vehemently argued that impugned order dated 24.9.2016, is not sustainable in the eye of law because same is not based upon proper appreciation of facts as well as law. He further contended that application under Section 311 Cr.PC., came to be filed at a belated stage and as such, same could not be entertained by the court below. However, this Court having carefully perused averments contained in the application vis--vis reasoning recorded by the court below while passing the impugned order, is not persuaded to agree with Mr. Dalip, learned counsel for the petitioner(s), for the reason that some of prosecution witnesses are yet to be examined. As per record, 20 prosecution witnesses have been examined and yet a number of prosecution witnesses are to be examined. Otherwise also, record reveals that by way of application, prosecution/State prayed that it be permitted to examine S/Sh. Vakila Ram, AAO, R.K. Thakur, S.O., Nar Singh Chahan (Sr. Auditor) AG HP Shimla and Jagdish Thakur, the District Treasury Officer, Shimla, because their statements may be relevant and crucial for proving the audit report, which otherwise stands placed on record with the challan.

4. Averments contained in the application suggest that audit report though was annexed with the challan, but inadvertently, person, who had signed the same could not be cited as prosecution witness. Mr. Shiv Darshan (Sr. Auditor) from the AG office, Shimla, while deposing before the court below, explained that audit was conducted by an audit party consisting of S/Sh. Vakila Ram, AAO, R.K. Thakur, S.O. and Nar Singh Chauhan (Sr. Auditor) AG HP Shimla and he simply signed the audit report in an official routine, whereas credit certificates were signed by the District Treasury Officer, Shimla. It is also not in dispute that such certificates have been attached to the challan. Though in the case at hand, prosecution has examined Sh. Shiv Darshan (Sr. Auditor) for proving the audit report, but inadvertently, failed to cite persons named by him in his examination-in-chief as prosecution witnesses at the time of submitting the charge sheet and as such, court rightly arrived at a conclusion that examination of these material witnesses is necessary for just and proper decision o the case.

5. Under Section 311 Cr.PC, court enjoys vast powers to summon, re-examine or recall the witnesses at any stage