AMARESH KU.SINGH,J. - (1.) HEARD the learned Counsel for the petitioner and the learned Public Prosecutor and perused the impugned order dated 16th September, 1994 passed by the learned Additional Chief Judicial Magistrate, Suratgarh in criminal original case No. 324 of 1989 State of Rajasthan v. Magher Singh.
(2.) BY the aforesaid order, the learned Additional Chief Judicial Magistrate directed that PW. 5 Badri Prasad be recalled for the purpose of further examination in order to prove the statement of Surja Ram (deceased), who had expired due to injuries received by him. The learned Counsel for the petitioner has challenged the impugned order on three grounds. The first submission of the learned Counsel for the petitioner is that the impugned order was passed at the instance of Om Prakash, who was neither the complainant nor a party to the case and on the application of Om Prakash, it was not open to the Additional Chief Judicial Magistrate to exercise the power conferred by powers under Section 311 Cr. P.C. the second submission is that it was the duty of the prosecution to prove the statement of Surja Ram during the Trial, but the prosecution neglected to perform their and. therefore, at the session of the trial when almost entire evidence was recorded, it was not open to the Additional Chief Judicial Magistrate to exercise his power under Section 311 Cr. P.C. The third submission is that if the Investigating Officer is recalled at this stage and he is further examined in order to prove the statement of Surja Ram, great injustice is likely to occur to the petitioner, who is the accused.
(3.) THE learned Public Prosecutor has supported the order passed by the Additional Chief Judicial Magistrate.;