Judgment V.K.Bali, J. 1. In this petition filed under Section 401 of Code of Criminal Procedure prayer is to set aside order dated 24.12.1992 passed by Shri V.P. Bishnoi, Chief Judicial Magistrate, Jind, who declined to record evidence of PW Raj Kumar, who was present in Court on the very same date when prosecution evidence was closed. 2. The facts that emerge from the impugned order reveal that the evidence of prosecution was closed by order dated 9.12.1992 and on the same very date. PW Raj Kumar, stated to be an eye witness, as stated by learned counsel representing the petitioner herein, appeared and moved an application for recording his statement as witness because he was present in Court and was not called by the Court to appear in the witness box. 3. The fact that Raj Kumar did move an application on the same very date, i.e., 9.12.1992, when the prosecution evidence was closed, has not been disputed. This, as would appear from the impugned order itself, is an admitted position. This application was, dismissed by learned Chief Judicial Magistrate by observing that this witness was not served for 9.12.1992. Therefore, the Court had no knowledge as to whether he was present out side the Court when the case was called. The accused as well as witnesses, namely, Ranbir Mohan, Ishwar and Tilak Raj appeared and were examined. Out of these three PWs, Ranbir Mohan and Tilak Raj were not served for that date but even then they appeared in the Court and made their statements. That being so, it has been observed by learned trial Court that the parties and the witnesses had the knowledge of the case. In these circumstances, it did not lie in the mouth of this witness that he had no knowledge regarding the call of the court for hearing of the case, further observed by the learned trial Court. It has also been observed that "therefore, if this application is allowed, then it would amount that the facts of the case are in the hand of this type of witness and the Court cannot dispose of the case unless such type of witness does not want its disposal. Therefore, if this type of application is allowed, it will not only amount to reopening of the case but to give unlimited powers to this type of witness. Therefore, if this type of application is allowed, it will not only amount to reopening of the case but to give unlimited powers to this type of witness. If the prosecution is allowed to examine this witness, it would also amount to fill up the lacuna left in the case and this cannot be done". 4. In considered view of this Court, learned trial Court did not take into consideration, at all, provisions of Section 311 of the Code of Criminal Procedure, which read thus :- "Power to summon material witness or examine person present :- 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 such person if this evidence appears to it to be essential to the just decision of the case." 5 If the Court has power to summon any person or examine any person at any stage of any enquiry, trial or other proceedings, which could be a better case then the one in hand. The witness, as mentioned above, admittedly, was present in Court. Assuming, at the time the case was called, the petitioner was temporarily absent but it is a fact that he had moved an application on the same very date, when prosecution evidence was closed. The same, in view of this Court, ought to have been allowed. So ordered. Order dated 24.12.1992 passed by learned Chief Judicial Magistrate, Jind is set aside and a direction is given to learned trial Court to examine PW Raj Kumar and then further proceed with the case. The petition is allowed accordingly. Petition allowed.