A.C.GOYAL, J. - (1.) THIS revision is directed against the order dated 29.10.1999 whereby the Additional Sessions Judge, Khetri set aside the order dated 16.7.1998 passed by the Additional Chief Judicial Magistrate recalling Dr. Jain as a prosecution witness by way of arrest warrant.
(2.) THE relevant facts in brief are that five accused respondents No. 2 to 6 are facing the trial for offence under Sections 147, 148, 452, 324, 325, 323 and 326 read with Section 149 I.P.C. with regard to an incident which according to the prosecution took place on 25.11.1987. The charges were framed on 24.10.1989 and the case was fixed for prosecution evidence. In all, 8 prosecution witnesses were examined. Thereafter the accused respondents were examined on 16.4.1998 as provided under Section 313 Cr.P.C. and one accused respondent Harnarayan appeared as a defence witness on 30.5.1998. The case was fixed for final arguments on 8.6.1998, then on 2.7.1998 and then on 16.7.1998. On that date an application for summoning Dr. Jain, as a prosecution witness, was moved on behalf of the learned Assistant Public Prosecutor (APP) and that was allowed on the same day. Criminal Revision No. 63/1998 filed on behalf of the accused respondents was allowed vide order dated 29.10.1999 as stated herein-in-above. I have heard learned counsel for the parties and learned Public Prosecutor. Learned counsel for the complainant-petitioner contended that the Court is empowered to recall any witness at any stage if necessary. Reliance is placed upon Rajendra Prasad v. The Narcotic Cell Through its Officer in Charge, Delhi, 1999(3) RCR (Cr.) 440 (SC) : 1999 Cr.L.R. (SC) 434 wherein it was held that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should rectify such mistake and the Court is empowered to recall any witness at any stage. The second judgment relied upon is that of Hon'ble Allahabad High Court in Lakshmi Shanker v. State of Uttar Pradesh, 1999 Cr.L.J.690 wherein it was held that rejection of earlier application for re-examination of a witness under Section 311 Cr.P.C. is no bar and the Court can reconsider second application upon certain changed circumstances. In Bhanwar Lal v. State of Rajasthan, 2002(1) Cr.L.R. (Raj.) 790, it was held that the doctor who conducted the post-mortem could not be produced in absence of the present address and the Trial Court closed the evidence. Now new address has been filed and the doctor is a material witness hence the Court has ample power to summon the witness. In Sumer Singh v. State of Rajasthan and Anr., Cr.L.R. 2001 (Raj.) 266, it was held that when trial is pending then the witness may be called under Section 311 Cr.P.C. Per contra, learned counsel for the accused respondents contended that similar application was rejected earlier and even thereafter the trial Court afforded more than one opportunity to the prosecution to produce the said witness but no effort was made and thus there is no ground to interfere with the order passed by learned Additional Sessions Judge. The Hon'ble D.B. of this Court held in Devi Lal v. State of Rajasthan, 1996 Cr.L.R. (Raj.) 110 that prayer of recalling witness once rejected under Section 311 Cr.P.C. cannot be allowed for the second time as it is not a routine matter. Learned Public Prosecutor supported the contentions raised by the learned Counsel for the complainant. I have considered the rival submissions in the light of the judgments cited here-in-above. The alleged incident, according to the prosecution, took place in November, 1987. The charges were framed in December, 1989 and the prosecution evidence was closed on 16.4.1998 and thus more than nine years were passed in recording the statements of eight prosecution witnesses. The accused respondents were examined as provided under Section 313 Cr.P.C. on 16.4.1998. Thereafter an application for summoning the said doctor was moved on the same day and it was dismissed by the Court on the same day i.e. 16.4.1998. Even thereafter the learned Magistrate allowed APP to produce the said witness, failing which it was ordered that defence evidence would be recorded. On the next day 19.5.1998 further time was granted to APP for producing the said witness but APP failed to produce the said witness even on next date 30.5.1998. On that day DW1 was examined and the case was fixed for final arguments on 8.6.1998, then on 2.7.1998 and then on 16.7.1998. On that day second application moved by APP was allowed by the Trial Court. A perusal of the order dated 16.7.1998 goes to show that the learned Additional Chief Judicial Magistrate failed to consider either the facts or the provisions of Section 311 Cr.P.C. and simply ordered that doctor Jain may be summoned by warrant of arrest. This order was set aside as stated here-in-above. I find no infirmity or illegality in the impugned order. Learned APP did not make any effort to produce the said witness in the Trial Court inspite of a number of adjournments and in view of the facts as stated here-in-above, there was no justification to allow the second application.
(3.) THEREFORE , this revision petition, being devoid of merit, is hereby dismissed. Record of the Trial Court shall be sent back within seven days from today along with the copy of this order. Copy of this order shall be sent to Director Prosecution, State of Rajasthan, Jaipur for necessary action against concerned Assistant Public Prosecutor. Revision dismissed.;