JAIN, J. - (1.) HEARD the learned counsel for the petitioner as well as the learned P. P. and examined the impugned judgment dated 12. 9. 05 and also the statement of PW 13 Chhote Lal.
(2.) THE petitioner has filed this revision petition against the order dated 12. 9. 05 passed by the Addl. District & Sessions Judge (Fast Track) No. 5, Bharatpur Camp Deeg in Cr. Case No. 33/2004 whereby the application of the petitioner under Section 311 Cr. P. C. has been rejected. The petitioner is facing trial before the Trial Court for the offence under Section 304-B IPC. The statement of prosecution witness Chhote Lal P. 13 was recorded. The petitioner moved an application on 12. 9. 05 before the Trial Court an application on 12. 9. 05 before the Trial Court to the effect that statement of Chhote Lal was recorded on 9. 2. 05 but on that day counsel for the accused was busy in some other urgent work and did not come to Court, therefore, he could not cross-examine the prosecution witness on that day, therefore, PW 13 Chhote Lal be recalled for cross-examination. The learned Trial Court after hearing the arguments dismissed the said application on the same day. Being aggrieved with the said order, the present revision petition has been filed. The counsel for the petitioner has contended that right of cross-examination to the prosecution witness is an important and valuable right. He further contended that from the order of the Trial Court it is clear that counsel for the accused was not present when statement of PW 13 Chhote Lal was recorded as he was not present on that day in the Court due to some urgent work. This fact has not been disputed in the order of the lower Court also. The Trial Court has mentioned that on 9. 2. 05 brief holder advocate Shri T. N. Gupta was present on behalf of the counsel for the accused. He has also referred the certified copy of the statement of PW 13 chhote Lal which clearly shows that this witness was not cross-examined on behalf of the accused party. The learned P. P. opposes the revision petition. I have considered the rival submissions and examined the impugned order dated 12. 9. 05 as well as the statement of Chhote Lal PW 13. It is not in dispute that petitioner is facing trial under Section 304-B IPC and counsel for the accused was not present in the Court on 9. 2. 05 when statement of PW 13 was recorded. The statement of PW 13 further shows that cross- examination was not made on behalf of the accused. There is only one line cross-examination which appears to be formal only. The Trial Court itself has mentioned in the impugned order that brief holder Shri T. N. Gupta was present and this fact shows that counsel for the accused was not present in the Court on 9. 2. 05 when statement of PW 13 Chhote Lal was recorded. The Trial Court has assigned one of the reason for rejection of application under Section 311 Cr. P. C. is that his Court is Fast Track Court and it is not proper to summon the witness again and again. This is a case wherein this witness is not being summoned again and again but this is the first application and first occasion for summoning him, more so on he ground that he could not be cross- examined by the counsel for the accused. The Fast Track Court does not mean that it should not give full, reasonable and proper opportunity to the accused to cross-examine important prosecution witness like Investigating Officer particularly in serious mattes like offence under Section 304-B IPC. The reasoning assigned by the Trial Court that his Court is a Fast Track Court and it is not proper to summon the prosecution witness is illegal, improper and unreasonable and the order based on such reasoning cannot be allowed to be be sustained particularly when the counsel for the accused submits that prosecution witness has not been cross- examined properly as he was not present in the Court on the day of the cross-examination of the prosecution witness.
(3.) FOR ready reference Section 311 of the Cr. P. C. is reproduced 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 such persons if his evidence appears to it to be essential to the just decision of the case. " The above provisions empowers the Court to summon and examine or recall and re-examine any person at any stage of the inquiry, trial or other proceedings in the Code. After considering the entire facts and circumstances of the case as well as the submission of the learned counsel for the petitioner it appears that it was a fit case wherein the recalling of the prosecution witness PW 13 Chhote Lal was Circle Officer during the period the investigation of the case was made by the prosecution. He is Investigation Officer of the case. The Investigating Officer of the case is an important witness, therefore, the Trial Court has committed an illegality in rejecting the application of the petitioner. ;