AJAY MISHRA Vs. STATE OF M P

JUDGEMENT

(1.) Heard. Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure challenging the order dated 10.7.2013 passed by Additional Sessions Judge, Seondha in Sessions Trial No. 73/2008, allowing the application under Section 311 of the Code of Criminal Procedure filed by the prosecution for summoning witness Gaurav Mishra in the case.

(2.) Learned counsel for the petitioners submits that the aforesaid witness Gaurav Mishra was not cited as a prosecution witness. His police statement under Section 161 of the Code of Criminal Procedure was also not recorded though his name was mentioned by the complainant in the First Information Report. Therefore, at belated stage when the case was at the stage of judgment the powers under Section 311 of the Code of Criminal Procedure should not have been exercised for filling up the lacuna left by the prosecution. He placed reliance on a Single Bench decision of this Court Raghuveer Prashad Sharma Vs. State of M.P., 2009 4 Crimes(MP) 315 , wherein it was held that when name of a person was not shown in challan and no statement under Section 161 of the Code of Criminal Procedure was recorded, trial Court would not be justified in allowing prayer of prosecution for summoning such person as witness.

(3.) The facts of the instant case are clearly distinguishable since the name of witness Gaurav Mishra was mentioned in the First Information Report by the complainant as an eye witness. Though, by mistake or by negligence Investigating Officer did not record his police statement, yet it cannot be held that his evidence was not essential for just decision of the case. If the trial Court is satisfied that evidence of such a person is essential for just decision of the case, it would be mandatory for him to summon such witnesses in exercise of powers under Section 311 of the Code of Criminal Procedure. It is not clear that in case of Raghuveer Prashad the name of witness, who was summoned under Section 311 of the Code of Criminal Procedure was mentioned in the First Information Report or not.