JUDGMENT 1. - This Revision Petition is directed against the order passed by the learned Additional Sessions Judge (Fast Track), Baran in Sessions Case No.1/2006 whereby the learned Trial Court dismissed the application dated 15.12.2008 filed under Section 311 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') seeking summoning of two eye witnesses of the incident dated 14.9.2005 namely Ramdayal and Raju Aerwal. 2. Heard the learned counsel for the petitioner as also learned Public Prosecutor assisted by the learned counsel for the accused. 3. The brief facts, relevant for the purpose of disposal of this petition, are that the petitioner lodged a written report Exhibit P.28 on 15.9.2005 at about 10 a.m. at Police Station Anta, which reads as under:- " fuosnu gS fd dy fnukad 14-9-05 dks 'kke lk<+s vkB ukS cts djhcu esjk yM+dk jktsUnz dqekj o mlds lkFk fot; mQZ js.kq iq= eksrhyky tkV] fuoklh cewfy;k ekrkth o gsejkt iq= cyjke /kkdM+ fuoklh cewfy;k ekrkth] rhuksa eksVjlkbZfdy vkjts 28 2,e 4588 lqtqdh MhyDl lqij ij edku ls cSBdj xkao cewfy;k ekrkth ls vUrk dh rjQ jokuk gksrs gq, eSaus ns[kk Fkk o FkksM+h nsj ckn gsejkt /kkdM+ rks gkFk eqag /kksus mrj x;k crk;k] nsj jkr rd ugha esjk yM+dk ugha vk;k rks eSaus mldh rkyk'k djh ,oa Fkkus esa fjiksVZ ntZ djokbZ Fkh rc ls gh eSa o esjs ifjokj okys o xkao okys ryk'k djrs jgsA vkt lqcg djhcu 7 cts eq>s tqxkM eSa cSBdj x;s O;fDr;ksa us crk;k fd dy jkf= dks geus rqEgkjs yM+ds jktsUnz dks ugj cUtkjh ukys ij igqaps rks ogka ij [kwu ds fu'kku utj vk;s o ?klhVus ds fu'kku Hkh utj vk;sA esjs lkFk nqyhpUnz] jetku] dSyk'k] jyohjflag] d'".kdqekj] jkrpUnz jSxj us ikuh esa dwn dj rkyk'k fd;k rks jktsUnz dh yk'k feyh] ftldks ckgj fudkyk o ge lcus ns[kk fd mlds 'kjhj ij txg&txg pkdw ds fu'kku o pksaVs gSa yk'k [kwu ds Bhd lkeus ikuh esa fudyh eq>s iwoZ 'kadk gS fd esjs iq= jktsUnz dh gR;k fot; mQZ js.kq iq= eksrhyky tkV fuoklh cewfy;k ekrkth us iqjkuh jaft'k dks ysdj pkdqvksa ls xksndj gR;k dj ugj esa Mky nh gSA rFkk eksVjlkbZfdy Hkh ugha feyh gS fjiksVZ dks vk;k gwa dk;Zokgh dh tkosA " 4. It is relevant to mention that before lodging Exhibit P.28, the petitioner had lodged the missing report in the mid-night. 5. It is relevant to mention that before lodging Exhibit P.28, the petitioner had lodged the missing report in the mid-night. 5. FIR No.290/05 was registered and after investigation of the matter, the police filed charge-sheet against the accused Vijay alias Renu.The case was committed to the court of Sessions on 21.12.2005 wherein the charge under Sections 302 and 201 IPC was read over to the accused on 16.1.2006, which was denied and the matter was posted for prosecution evidence consecutively for four dates i.e. 20.2.2006 to 23.2.2006 and four witnesses on each date i.e. 1 to 4, 5 to 8, 9 to 12 and 13 to 16, were summoned by way of bailable warrants. 6. However, the witness no.1 shown in the charge-sheet, is the present petitioner Prabhu Lal, who happens to be the father of the deceased, but did not appear for his evidence despite service of bailable warrants. Ultimately he had to be summoned by way of arrest warrant and could only be examined on 27.11.2007 as PW-23, but his cross examination was completed on 12.6.2008. The order sheets of the case show that during the said seven months i.e. 27.11.2007 to 9.6.2008 also he abstained many a times and service could not be affected despite issuance of process again and again and at last he came through bailable warrants on 12.6.2008 and was examined as a last witness. The matter thereafter was posted for statement of accused under Section 313 of the Code. 7. The accused was examined under Section 313 of the Code and the matter was posted for defence, which remained at that stage on 27.8.2008, 4.9.2008, 13.10.2008, 7.11.2008 and on 18.11.2008 conditional order was passed that if the accused would not produce his defence, the final arguments will be heard on 15.12.2008. 8. Meanwhile the application under Section 319 of the Code filed by the petitioner, was dismissed on 27.8.2008. 8. Meanwhile the application under Section 319 of the Code filed by the petitioner, was dismissed on 27.8.2008. Thereafter the petitioner filed application under Section 311 of the Code on 15.12.2008 i.e. when the matter was fixed for final arguments, which was dismissed vide order dated 10.2.2009 and a revision against the order dated 10.2.2009 was preferred before this court, which was registered as Criminal Revision Petition no.317/2009, and was disposed of vide order dated 16.3.2009 which reads as under:- "By filing instant criminal revision petition under section 397 read with section 401 Cr.P.C. the petitioner has challenged the order dated 10.2.2009 passed by Addl. Sessions Judge (Fast Track) Baran (for short 'the trial court') passed in Sessions Case No.1/2006 whereby he rejected the application filed by the petitioner under section 311 Cr.P.C. Without going into merits of the case Mr. (Dr.) Mahesh Sharma, counsel for the petitioner has c idly made a request at Bar that the aforesaid matter be remanded to the trial court with a direction to the trial court to decide the aforesaid case in the light of following judgments : (1) Paramjeet Singh & Anr. v. State & Anr., 2004(1) WLC (Rajasthan) 698 ; (2) Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & others, Cr.L.R. (SC) 2004 page 586 . Mr. Pradeep Shrimal, Public Prosecutor specifically denied the aforesaid request of Mr. Sharma and submits that the trial court has passed the order impugned after considering all the material which was made available to him. In my considered view the request made by Mr. Sharma seems to be reasonable and thus accepted. In the result this criminal revision petition is allowed and the order dated 10.2.2009 passed by Addl. Sessions Judge (Fast Track) Baran in Sessions Case No.1/2006 is quashed and set-aside and the matter is remanded to the trial court with the direction to re-hear both the parties and decide the same in the light of aforesaid judgments, as cited by Mr. Sharma, counsel for the petitioner. The trial court shall complete this exercise within a period of 15 days from the date of receipt of a certified copy of this order." 9. Thus, the matter was remanded to the trial court with the direction to re-hear both the parties and decide in the light of Apex Court's judgment in the matter of Zahira Habibulla H. Sheikh & Anr. Thus, the matter was remanded to the trial court with the direction to re-hear both the parties and decide in the light of Apex Court's judgment in the matter of Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & others, 2004 Cr.L.R. (SC) 586 ; and Paramjeet Singh & Anr. v. State & Anr., 2004(1) WLC (Rajasthan) 698 . 10. The learned trial court re-heard on the application under Section 311 of the Code and dismissed the same vide impugned order dated 15.4.2009. 11. Learned counsel for the revisionist mainly relied on the principles laid down in the case of Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & others (supra) and a judgment passed by learned Single Bench of this court in Paramjeet Singh & Anr. v. State & Anr., 2004 (1) WLC (Rajasthan) 698 (supra). 12. Admittedly, the object underlying in Section 311 of the Code is that there may not be a failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case and that the section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. The significant expression that occurs in Section 311 of the Code, is "at any stage of any inquiry or trial or other proceeding under this Code". The section although confers a very wide power on the Court of summoning witnesses but it has to be borne in mind that the discretion conferred is to be exercised judiciously because the wider the power the greater is the necessity for application of judicial mind. 13. The section although confers a very wide power on the Court of summoning witnesses but it has to be borne in mind that the discretion conferred is to be exercised judiciously because the wider the power the greater is the necessity for application of judicial mind. 13. The section is wholly discretionary, however, it can be divided in two parts - the first part of the section gives the discretion to the court to examine a person present in the court even if he has not been summoned, whereas the second part imposes an obligation upon the court because the wordings used is the Court shall summon and examine any such person whose evidence appears to be essential to the just decision of the case. The principle as laid down by the Apex Court from time to time, is that the Court has to evaluate and decide whether the new evidence is essential or not. 14. The object of Section 311 of the Code is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. The purpose of section 311 of the Code is not to favour or disfavour the prosecution or the accused, but naturally to elicit and to get unfolded the truth. But this fact can also not be ignored that the powers under this section are discretionary and have to be exercised with great care and caution in either ways. No general rule can be made as to when and under what circumstances discretion to summon the witnesses, ought to be exercised. The paramount consideration is doing justice to the case. Therefore, if a court comes to the conclusion that for the just decision of the case, permission to produce certain evidence is essential, merely because the stage has passed and the matter is posted for arguments or judgment, it should not limit the scope of passing the order under section 311 of the Code, as section 311 of the Code authorises the court to pass an order at any stage. This is the principle laid down in the case of Paramjeet Singh & Anr. v. State & Anr. (supra). So, the paramount consideration will be, doing justice to the case. This is the principle laid down in the case of Paramjeet Singh & Anr. v. State & Anr. (supra). So, the paramount consideration will be, doing justice to the case. Each case has to be evaluated on its facts and circumstances and no general rule can be made out. 15. In Zahira Habibulla H. Sheikh & another v. State of Gujarat & others (supra), the principle laid down with regard to section 311 of the Code is as under:- "In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective." 16. The case of Zahira Sheikh, popularly known as Best Bakery Case, was a case wherein the finding of acquittal was arrived at because of the witnesses turning hostile and also on account of non examination of injured eye witnesses. It was a case of communal riot and the Hon'ble Apex Court in that case found defective investigation and the role of Public Prosecutor was deprecated wherein the major defects in investigation were found and re-trial was ordered. The said case had several unusual features, some of which pose very serious questions of far reaching consequences. 17. In that case, Zahira Sheikh who claimed to be an eye witness to macabre killings allegedly as a result of communal frenzy, made statements and filed affidavits after completion of trial and judgment by the trial court, alleging that during trial she was forced to depose falsely and turn hostile on account of threats and coercion. The other unusual question raised by the State of Gujarat was related to the improper conduct of trial by the Public Prosecutor. The role of the investigating agency was found to be perfunctory and was not impartial, and was found as tainted, biased and not fair. The other unusual question raised by the State of Gujarat was related to the improper conduct of trial by the Public Prosecutor. The role of the investigating agency was found to be perfunctory and was not impartial, and was found as tainted, biased and not fair. The prosecution version which led to the trial of accused persons in that case, was that on 1.3.2002 at about 8.30 p.m. and on 2.3.2002 at about 11.00 a.m., a bakery known as Best Bakery at Vadodara was burnt down by an unruly mob of large number of people. In that incident 14 persons died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was the main eye witness who lost family members including helpless women and innocent children in the gruesome incident. Many persons other than Zahira were also eye witnesses. 18. The accused persons were the perpetrators of the crime. The charge-sheet was filed in June 2002. During the trial the eye witnesses resiled from the statements made during investigation. Faulty and biased investigation as well as perfunctory trial were said to have marred the sanctity of the entire exercise undertaken to bring the culpirits to books. 19. The trial court vide its judgment dated 27.6.2003 directed acquittal of the accused persons. In that particular matter, the Apex Court found that the Public Prosecutor was not acting in the manner befitting the position held by him. He did not make a request to hold the trial in camera when large number of witnesses were resiling from their statements made during investigation. In that case Zahira Sheikh had specifically stated on affidavit about the threat given to her and the reason for not coming out with the truth during her examination before court on 17.5.2003. 20. The Apex Court observed in para 11 that the trial court should have exercised powers under section 311 of the Code and recalled and re-examined witnesses as their evidence was essential to arrive at the truth and a just decision in the case. It was observed that the power under section 165 of the Indian Evidence Act, 1872 was not resorted to at all and that also had led to miscarriage of justice.It is in this context, the Apex Court was examining these provisions. It was observed that the power under section 165 of the Indian Evidence Act, 1872 was not resorted to at all and that also had led to miscarriage of justice.It is in this context, the Apex Court was examining these provisions. The wordings of section 311 of the Code is clear that at any stage of the inquiry proceedings or trial if it appears to the Court that evidence of some person is essential to the just decision of the case, the court shall summon and examine or recall and re-examine such person. With this position of law, the case in hand is to be looked into. 21. As discussed herein above, the foundation of the case was Exhibit P.28 lodged by the petitioner himself, who is the real father of the deceased, according to which his son had left on 14.9.2005 at about 8.00 to 9.00 p.m. for Anta and did not return whole night. While going, he was accompanied by Vijay alias Renu and one Hemraj, who in his presence itself had returned to the village, and his son and Vijay went by the motorcycle to Anta. He further informed the police that in the morning at about 7.00 a.m. he was informed by Ramcharan and other persons (not named) travelling in the 'jugar' claiming to have seen the deceased lying with his face downwards near the canal. Meaning thereby, till this time the petitioner had no information or clue about the incident which took place with his son. The entire case of the prosecution thus was founded as a case of circumstantial evidence, as there was no eye witness of the case. The incident is dated 14.9.2005. The charge-sheet was filed in December 2005 and it was committed and trial commenced on 16.1.2006. Revisionist himself was examined on 27.11.2007 as PW 23 being the last witness and the order-sheets, as mentioned herein above, show that despite service by way of bailable and arrest warrants the petitioner did not appear for his examination whereas the attempts for calling him started from day one i.e. 16.1.2006. 22. The petitioner alleges faulty investigation and faulty trial by the trial court. 22. The petitioner alleges faulty investigation and faulty trial by the trial court. During the course of arguments it was submitted that the petitioner had made a representation before the Superintendent of Police on 14.10.2005 mentioning about the fact that Ramdayal and Raju, whom the petitioner seeks to summon by way of this application, were eye witnesses and that they were not being examined by the investigating officer. A typed photocopy on a plain paper which does not bear any receipt or dispatch or show any proof of sending the same to the Superintendent of Police, has been produced before me during the course of arguments. This paper does not appear anything more than a plain paper or a hand-written with a date of 14.10.2005. Strangely, if the petitioner was aggrieved with the investigation, he should have approached the senior officials. It raises doubt in itself for the reason that the petitioner remained quiet even after his own examination. Even during his statements under section 161 of the Code also, he did not whisper that there were two eye witnesses of the incident. More so, in his examination in the court also, he did not talk about Ramdayal and Raju being eye witnesses of the incident. He was confronted with his previous statement under section 161 of the Code during the course of cross examination with regard to the improvements made by him. He was also confronted with the Exhibit P.28 wherein he had only claimed to have last seen his son with Vijay alias Renu and had lodged the missing report. 23. It is a very strange state of affair that a person who is the father of the deceased and knows that there are some eye witnesses of the incident, neither mentioned in his statements under section 161 of the Code nor does he ever report about this fact from December 2005 to December 2008 i.e. for three complete years. 24. During the arguments learned counsel for the revisionist also alleged faulty trial but I did not find any transfer application being moved by the petitioner for transfer of the case from that particular court. More-over, his conduct is reflected from the order-sheets that he took about two and a half years for him to be examined before the Court. The trial court has elaborately discussed the facts and the conduct of the revisionist during the trial. 25. More-over, his conduct is reflected from the order-sheets that he took about two and a half years for him to be examined before the Court. The trial court has elaborately discussed the facts and the conduct of the revisionist during the trial. 25. Assessed from any angle, I do not find that the petitioner has made a good case for examination of these two witnesses of the incident. The two affidavits allegedly executed by the so called two eye witnesses Ramdayal and Raju on 29.12.2005, also do not inspire confidence. The revisionist lodged the FIR on 15.9.2005 at 10.00 a.m., whereas according to these two affidavits they claim to have informed the petitioner at night itself about seeing the incident. The two affidavits allegedly executed by the so called two eye witnesses Ramdayal and Raju on 29.12.2005, also do not inspire confidence. The revisionist lodged the FIR on 15.9.2005 at 10.00 a.m., whereas according to these two affidavits they claim to have informed the petitioner at night itself about seeing the incident. The affidavits read as under:- " eSa fd jken;ky vk;q 22 lky iq= Hkh lwjtey tkfr es?koky fuoklh /kkdM+[ksM+h rglhy vUrk ftyk ckjka jktLFkku dk gwa tks fd bZ'oj dh lk{kh esa fuEu 'kiFki= vkysf[kr djrk gwa& eSa gYQ;k c;ku djrk gwa fd eSa fnukad 14-9-2005 dks jkf= djhcu 9 cts vius xkao /kk[kM+ [ksM+h ls jokuk gqvk esjs lkFk jktw iq= jkepUnz ,sjoky Fkk eSa lkbZfdy pyk jgk Fkk rFkk jktw esjs ihNs lkbZfdy ij cSBk Fkk eSa vkSj jktw ugj ds jkLrs ls vUrk vkdzsLV~k dk dk;Zdze Fkk ftls ns[kus ds fy, tk jgs Fks@ugj ds jkLrs ij cUtkjh ukyk tks cewfy;k ekrkth xkao ds utnhd iM+rk gS ogka ij cpkvks cpkvks dh vkokt vk jgh Fkh eSusa jktw ls ;g vkokt vk jgh gS ml rjQ mtkyk djk;k rks lkeus gh fdlku VkVZ dk mtkyk jktsUnz pkS/kjh ds eqag ij iM+k eSaus ,oa jktw us jktsUnz dks igpku fy;k rFkk ogka ij jks'kuh pkjksa rjQ Qsjdj ns[kk rks fot; dqekj mQZ js.kq tkV cewfy;k ekrkth ,oa jes'k pekj jktsUnz pkS/kjh ds vkxs ihNs ls pkdw ?kksai jgs Fks rFkk gsejkt /kkdM+ ,o nks vU; O;fDr ftudh igpku ugha lds D;ksafd eqag ij diM+k cka/k j[kk Fkk os jktsUnz pkS/kjh dks idM+ j[kk Fkk eSa rFkk jktw bl utkjs dks ns[kdj Mj x;s rFkk lh/ks vUr vk;s rFkk vkdszLVk esa vk;s ysfdu Mj ds ekjs ijs'kku jgs dqN le; ckn izHkqyky pkS/kjh ,oa egkohj jkBkSM+ Hkh vkdzsLVk esa eq>s fn[ks rks eSaus iwNk fd fdls ryk'k jgs gks rks mUgksaus dgk fd cewfy;k ds vknfe;ksa dks ryk'k dj jgk gwa fQj eSaus rFkk jktw us tks utj ij ns[kdj vk;s mldks izHkqyky pkS/kjh dks crk;k rFkk eSa vkSj jktw rqjUr gh cjlrs ikuh esa Mj ds ekjs iyk;Fkk gksdj xkao /kkdM+[ksM+h vk x;sA eSa 'kiFkiwoZd ?kks"k.kk djrk gwa fd mDr of.kZr 'kiFki= esa vafdr lHkh rF; esjs LoKku ds vuqlkj loZFkk lR; gS blesa dksbZ rF; >waBk ugha gS vkSj u gh dksbZ rF; Nqik;k x;k gS bZ'oj esjh lPpkbZ esa ennxkj gSA fnukad 29-12-2005 eSa fd jktw vk;q 21 lky iq= Jh jkepUnz tkfr ,sjoky fuoklh /kkdM+[ksM+h rglhy vUrk ftyk ckjka jktLFkku dh gwa tks fd bZ'oj dh lk{kh esa fuEu 'kiFki= vkysf[kr djrk gwa& eSa gYQ;k c;ku djrk gwa fd eSa fnukad 14-9-2005 dks jkf= djhcu 9 cts vius xkao /kkdM+[ksM+h ls jokuk gqvk esjs lkFk jken;ky iq= lwjtey es?koky /kkdM+[ksM+h Fkk tks lkbZfdy pyk jgk Fkk eSa ihNs cSBk Fkk eSa vkSj jken;ky ugj ds jkLrs ls vUrk vkdzsLVk dk dk;Zdze Fkk ftls ns[kus ds fy, tk jgs Fks ugj ds jkLrs ij cUtkjh ukyk tks crwfy;k ekrkth xkao ds utnhd iM+rk gS ogka ij cpkvks&cpkvks dh vkokt vk jgh Fkh eSaus jken;ky ds dgus ij fdlku VkpZ dk mtkyk fd;k rks jktsUnz pkS/kjh ds eqag ij iM+k eSaus jktsUnz dks igpku fy;k rFkk ogka ij jks'kuh pkjksa rjQ Qsjdj ns[kk rks fot; dqekj mQZ js.kq tkV cewfy;k ekrkth ,oa jes'k dqekj jktsUnz pkS/kjh vkxs ihNs ls pkdw ?kksai jgs Fks rFkk gsejkt /kkdM+ ,oa nks vU; O;fDr ftudks igpku ugha lds D;ksafd eqag ij diM+k ck/k j[kk Fkk os jktsUnz pkS/kjh dks idM+ j[kk FkkA eSa rFkk ge nksuksa bl utkjs dks ns[kdj Mj x;s rFkk lh/ks vUrk vkdzsLVk esa vk;s ysfdu Mj ds ekjs ijs'kku jgs dqN le; ckn gh izHkqyky pkS/kjh ,oa egkohj jkBkSM+ Hkh vkdzsLVk esa gedks fn[kkbZ fn;s rks jken;ky us iwNk fd fdls ryk'k jgs gks mUgksaus dgk fd cewfy;k ds vknfe;ksa dks ryk'k dj jgk gwa fQj eSaus rFkk jken;ky us tks ugj ij ns[kdj vk;s mldks izHkqyky pkS/kjh dks crk;k rFkk eSa vkSj jken;ky rqjUr gh cjlrs ikuh esa Mj ds ekjs iyk;/kk gksdj xkao /kkdM+[ksM+h vk x;sA eSa 'kiFkiwoZd ?kks"k.kk djrk gwa fd mDr of.kZr 'kiFki= esa vafdr lHkh rF; esjs LoKku ds vuqlkj loZFkk lR; gSa blesa dksbZ rF; >wBk ugha gS vkSj u gh dksbZ rF; Nqik;k x;k gS bZ'oj esjh lPpkbZ dk ennxkj gSA fnukad 29-12-2005 " 26. If the version of these two witnesses is believed, the whole story of the prosecution is belied because according to these witnesses the revisionist had information about this incident from these two witnesses who claim to have seen the incident by their own eyes, then what was the reason of his not mentioning it in the Exhibit P.28 or even for that matter in Exhibit P.27. If these witnesses were there, what was the reason of not naming all those five persons in the FIR lodged by the father of the deceased. 27. For the foregoing reasons, I do not consider that summoning or examining these two so-called eye witnesses was required for the just decision of the case , therefore, in my considered view, the revisionist has not made out a good case as there is no illegality or perversity in the impugned order which may warrant interference of this court in exercise of its revisional jurisdiction. 28. Hence his revision is devoid of merit and deserves to be dismissed. Accordingly, the revision petition is dismissed with no order as to costs. Stay order dated 6.11.2009 is vacated. 29. The revision petition as well as the stay application stand disposed. 30. Copy of this order be sent to the trial court with immediate effect.Revision Dismissed. *******