ORDER
Fakhruddin, J.
1. Heard.
2. The applicants arc being prosecuted for the offence punishable under Section 306/34, IPC before the Fast Track Court, Janjgir in Sessions Trial No. 41/2003.
3. At the conclusion of the trial, an application under Section 311, Cr.PC was filed by the prosecution stating that the Head Constable who had registered the Merg Intimation No. 67/2001 could not be included in the list of witnesses due to mistake. It was urged that the examination of the said Head Constable is material and necessary. The said application was opposed. However, the Trial Court arriving at a conclusion that the said witness is material and necessary allowed the application and the summons have been issued. Being aggrieved by the said order, the applicants have filed this petition.
4. Learned Counsel for the applicants contended that the Court below erred in holding that any amendment like adding the name of the witness in previously filed challan paper comes under Section 311, Cr.PC, whereas there is no provision of amendment under Section 311 of Cr.PC.
5. On the other hand, learned Counsel for the State opposed the contention and submitted that the addition of witness is not prohibited.
6. This Court in its order dated 14-8-2002 passed in M.Cr.C. No. 1341/2002 (Rajesh Kumar @ Ramjan Khan v. State of C.G.), while referring to Page 58 of Lax Lexicon Sweet and Maxwell, wherein the word 'amendment' has been defined, has held that the necessary corrections by way of amendment can be made at any stage of the proceedings. The definition of word 'amendment' narrated in the said judgment is as follows:--
'Amendment means a correction of any errors in the writ or pleadings in actions, suits or prosecutions. The power of allowing amendments has been much extended by modern statutes and rules, but it will not be exercised to the prejudice of a party to the proceeding apart from this, it is in general a mere matter of costs.
Amendment of proceedings : (1) *** ******(2) *** *** *** *** ***(3) Criminal proceedings.-- Under the Indictment Act, 1915, the Court may amend a defective indictment unless such amendment can not be made without injustice. Quarter Sessions can amend the statement of grounds of appeal to them from Courts of Summary Jurisdiction upon such terms as to costs and postponement as they may think fit. As regards Courts of Summary Jurisdiction, the King's Bench Division can amend an order bad for want of form upon the return of a writ of certiorari. In these Courts, no objection to any information, complain or summons for any defect in substance or form is allowed, about if the party summoned has been deceived or misled by a defect, the justice may adjourn the hearing.'
So far as amendment sought in this case is concerned, it is only an addition of the name of witness in the list of witnesses filed alongwith the challan papers. This amendment has been granted with a view to make the record proper, as in the previous list the names of nine witnesses were included and by adding the name of the Head Constable, who had registered the merg intimation, now there arc ten witnesses to be examined. Such an amendment is permissible.
7. Section 311 of Cr.PC, which was earlier Section 540 in the old Cr.PC is relevant and is quoted below :--
'Power to summon material witness, or exanimate person present.-- Any Court may, at any stage of any enquiry, 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 person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.'
On a plain reading of Section 311, Cr.PC, it is evidently clear that the power can be exercised at any stage by the Court, It can be exercised at the behest of the accused, at the behest of the defence and even at the behest of the prosecution.
8. So far as examination/recall of the witnesses is concerned, Section 311 of Cr.PC empowers the Court to summon a material witness or to examine a person present in the Court or to recall a witness already examined. It is further noted that this power is found in Section 165 of the Indian Evidence Act. The decision of the Apex Court in the case of Jamatraj v. State of Maharashtra (AIR 1968 SC 178) is pertinent. Paragraphs 5 and 6 of the said judgment are quoted below:--
'5. The question falls to be considered under Section 540 of the Code of Criminal Procedure. That section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as 'miscellaneous'. It provides:
'Section 540 : Any Court may, at any stage of any inquiry, trial or other proceedings 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 person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.'6, The Section gives a power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in Section 165 of the Indian Evidence Act, which provides:
'Section 165 : The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant and may order the production of any document or thing; and neither, the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question : These two sections between them confer jurisdiction on the Judge to act in aid of justice.'
9. In the aforesaid judgment, it has also been held that there is no limitation on power of Court arising from stage to which trial may have reached, provided Court is bona fide of opinion that for just decision of the case step must be taken.
10. The Supreme Court in the case of Shailendra Kumar v. State of Bihar (2001 AIR SCW 4984) in Para 11 has held as under :--
'11. Bare reading of the aforesaid section reveals that it is of very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad v. Narcotic Cell [(1999) 6 SCC 110] observed, 'After all, function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.'
11. Having considered the facts and circumstances of the case and material on record, in the opinion of this Court, examination of the Head Constable, who had registered the merg intimation, was most essential and necessary not only from the point of view of establishment of the prosecution case but also for substantiation of the defence case.
12. In view of the discussions made hereinabove, no case warranting interference in exercise of powers conferred under Section 482, Cr.PC is made out.
13. The petition fails and is dismissed.