2025:HHC:38820 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 1001 of 2025 Reserved on: 16.10.2025 Date of Decision: 18.11.2025. Dhani Ram and others ...Petitioners Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioners : Mr Arsh Chauhan, Advocate. For the Respondent/State : Mr Jitender Sharma, Additional Advocate General. Rakesh Kainthla, Judge The petitioners have 昀椀led the present petition against the order dated 21.4.2025, passed by learned Judicial Magistrate First Class, Anni, District Kullu, HP (learned Trial Court) in Criminal Case titled State of H.P. Vs. Dhani Ram and others, vide which the application 昀椀led by the respondent/State under Section 348 of Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) (corresponding to Section 311 of Cr.P.C.) was allowed, and the order dated 25.9.2025 passed by learned Sessions Judge, Kinnaur at Rampur, (learned Revisional Court) vide which the order dated 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:38820 21.4.2025, passed by learned Trial Court was upheld. (Parties shall hereinafter be referred to in the same manner as they are arrayed before the learned Trial Court for convenience.) 2. Brie昀氀y stated, the facts giving rise to the present petition are that a criminal case is pending before the learned Trial Court. The charges were framed on 10.5.2023, and the matter was taken up for prosecution evidence. Learned Trial Court closed the evidence vide order dated 27.3.2025. The prosecution 昀椀led an application under Section 348 of BNSS, which was allowed. The order was challenged before the learned Sessions Judge by 昀椀ling a revision, but the revision 昀椀led by the petitioner/accused was dismissed. The learned Trial Court could not have reviewed or recalled its order closing the evidence by allowing the application. The learned Trial Court became functus o昀케cio after passing an order of closing the evidence. The jurisdiction under Section 348 of BNSS can be exercised when the evidence appears to be necessary, and not for enabling the prosecution to 昀椀ll-up a lacuna left by its own negligence. The orders passed by learned Courts below have resulted in grave injustice. Hence, it was prayed that the present petition be 3 2025:HHC:38820 allowed and the orders passed by the learned Courts below be set aside. 3. I have heard Mr Arsh Chauhan, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State. 4. Mr Arsh Chauhan, learned counsel for the petitioner, submitted that the learned Trial Court erred in allowing the application after closing the evidence. Learned Trial Court had become functus o昀케cio after closing the evidence and could not have allowed the application to recall the witnesses. Therefore, he prayed that the present petition be allowed and the orders passed by the learned Courts below be set aside. 5. Mr Jitender Sharma, learned Additional Advocate General for the respondent-State, submitted that the jurisdiction under Section 348 of BNSS can be exercised at any stage, even after closing the evidence by the parties. The examination of the witnesses is essential for the just decision of the case. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 4 2025:HHC:38820 7. A similar situation arose in Shyam Verma v. State of H.P., 2012 SCC OnLine HP 1569, wherein the prosecution had failed to complete the evidence, and the learned Trial Court closed the evidence on 1.7.2010. The matter was listed for arguments after recording the statement of the accused under Section 313 of Cr.P.C. when the prosecution 昀椀led an application for examination of the witnesses. Learned Trial Court partly allowed the application. The matter was carried to this Court. This Court held that Section 311 of Cr.P.C. authorises the Court to summon any person as a witness at any stage of the trial. This power is available to the Court even after the closure of the evidence. It was observed:- “10. The learned counsel for the petitioner has submitted that the evidence of the prosecution was closed on 1.7.2010 and that the order attained 昀椀nality. The order dated 28.12.2010 amounts to a review of the order dated 1.7.2010, which is not permissible. This contention has no force. Section 311 of the Code authorises the Court to summon any person as a witness at any stage of the trial. This power is available to the Court even after the closure of the evidence of the prosecution…” 8. A Division Bench of this Court held in Dharam Pal alias Ashu Vs. State of H.P., Cr.MMO No. 828 of 2024, decided on 29.5.2025, that the jurisdiction under Section 311 of Cr.P.C. can be exercised even if the evidence is closed by both the parties. It was observed:- 5 2025:HHC:38820 “8. Thus, from the aforesaid pronouncements by the Hon’ble Supreme Court, it is clear that the power to receive evidence in exercise of Section 311 of the Code could be exercised even if evidence on both sides is closed. The object underlying Section 311 of the Code is that there may not be 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. The section is a general section which applies to all proceedings, enquiries and trials under the Code.” 9. Therefore, in view of the binding precedent of this Court, the submission that the learned Trial Court could not have recalled the order closing the evidence by allowing the application cannot be accepted. 10. It was submitted that no opportunity to 昀椀le a reply was granted to the petitioner, and the order su昀昀ers from a serious in昀椀rmity. This submission is not acceptable. The order sheet shows that initially, the learned counsel for the accused expressed his no objection by writing it on the face of the application; however, subsequently, another counsel appeared and stated that he wanted to 昀椀le a reply. The Court adjourned the matter for 昀椀ling a reply after lunch; however, no reply was 昀椀led, and an order was passed by the Court. 11. Thus, the conduct of the accused was highly unfair. First, he was stated that he had no objection to allowing the 6 2025:HHC:38820 application by writing this fact on the application itself, which amounted to consent, but subsequently sought time to 昀椀le the reply. No reply was 昀椀led, even though the time was granted by the Court. Therefore, in these circumstances, the Court was justi昀椀ed in proceeding further. A person cannot play hide and seek or fast and lose with the Court and expect to get away with it. The conduct of the accused in initially consenting to allowing the application and thereafter rescinding from it shows such conduct. Still, the Court had permitted the accused to 昀椀le a reply, which was not 昀椀led. Hence, the order does not su昀昀er from any in昀椀rmity. 12. No other point was urged. 13. In view of the above, the present petition fails and it is dismissed. 14. The observation made herein before shall remain con昀椀ned to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 18th November 2025 (Chander)