JUDGMENT 1. - This revision petition is directed against the order of the learned Munsif and Judicial Magistrate Sardarshahar dated 21-1988 whereby the learned Magistrate allowed the application of the complainant to examine Shri Lunaram Patwari and Shri Prtapsingh Purwa, Advocate as court-witnesses, after the defence closed its evidence and specially when these witnesses were cited as prosecution witnesses but they were not examined by the complainant. 2. The complainant moved his application on 17-2-1987 about the examination of these two witnesses as court-witnesses pleading, inter alia, that the defence witnesses have denied the occurrence of fire. It is not a formal denial but they have stated that no such fire took place and, therefore, in order to rebut their version, these witnesses should be examined as court witnesses. The accused-persons filed the reply on 21-11-1987 pleading inter alia, that these witnesses, which were cited as prosecution witnesses by the complainant, and were not examined by the prosecution, now cannot be examined to fill up the gap left by the prosecution. The learned lower court after considering the rival submissions made at the bar came to the conclusion that evidence in this case is contradictory and, therefore, it has deemed it proper to examine these two witnesses as court-witnesses. 3. Mr. A.K. Rajvanshi, the learned Counsel appearing for the petitioners has submitted that the prosecution cannot be allowed to rebut the defence evidence unless the defence brings in something suddenly and unexpectedly. In this respect, reliance has been placed on State v. B.B. Saxena 1972 RLW 465. In this case, the case of the prosecution was that the accused persons have it fired. The defence witnesses have stated that no such fire took place at all. Thus, it cannot be said that this case has been set up all of a sudden by the defence and, therefore, these witnesses cannot be allowed to be examined to rebut the defence case. 4. It was further argued by Mr. A K. Rajvanshi, the learned Counsel appearing for the petitioners that these two witnesses were cited by the complainant as his own witnesses but he failed to examine them and now after the defence has closed its evidence, the prosecution cannot be allowed to examine these witnesses at court-witnesses in order to fill up the gap left by it. A K. Rajvanshi, the learned Counsel appearing for the petitioners that these two witnesses were cited by the complainant as his own witnesses but he failed to examine them and now after the defence has closed its evidence, the prosecution cannot be allowed to examine these witnesses at court-witnesses in order to fill up the gap left by it. In this respect, reliance has been placed on Piara Singh v. State of Punjab 1978 Cr. LJ 771, where in it has been observed. "It would not be proper exercise of the discretion under the section, to allow evidence explaining the delay in lodging the report to be recorded after accused had closed their defence especially when one of the witnesses who was to depose about this matter was cited in the calender of witnesses and was later given up by the Public Prosecutor." In Balwant Singh v. State of Rajasthan 1986 Cr. LJ 1374 , an application was made to examine the witnesses after the closure of the defence evidence to prove that the weapon used by the accused party was a sharp weapon but it was used from its blunt side. The Court held that that could have been proved while the prosecution led its own evidence because the Doctor has categorically stated that the injuries received by the injured were from a blunt weapon and so, in such a case, powers under Section 311 Or. PC cannot be allowed to be used after the defence has closed its evidence. 5. Reliance was also placed on Kanhaiyalal v. State 1987 Raj. Cr. Cases-345. wherein it has been observed that it is very unfortunate that when the case was completely argued and the matter was posted for judgment, an application like the one was entertained. Likewise, a learned Single Judge of the Madhya Pradesh High Court in State of M.P. v. Kalyan 1987 CrLJ 209 has held that the witnesses who were cited by the prosecution and whose attendence could not be procured instead of coercive process issued by the Court cannot be allowed to be examined as court-witnesses. 6. On the other hand, Mr. Likewise, a learned Single Judge of the Madhya Pradesh High Court in State of M.P. v. Kalyan 1987 CrLJ 209 has held that the witnesses who were cited by the prosecution and whose attendence could not be procured instead of coercive process issued by the Court cannot be allowed to be examined as court-witnesses. 6. On the other hand, Mr. L.M. Lodha the learned Counsel appearing for the non-petitioner has submitted that Section 311 Cr-PC can be divided into two parts firstly, the Court may at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendence, though not summoned as a witness or recall and re-examine any person already examined if it deems it just and proper, and secondly, the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. Mr Lodha has submitted that where the examination of the witnesses is essential for the just decision of the case, the Court is duty bound to examine the witnesses as court witnesses. In this respect he, has placed reliance on Loondan and Ors. v. The State of Rajasthan 1983 Raj. Cr. Cases 43 , Umaid Singh and Ors. v. Devi Singh and Ors. 1985 Raj Criminal Cases 32 and State of Assam v. Muhim Darkataki [ AIR 1987 SC 98 ] . I am afraid, these authorities will not help the case of the complainant-non-petitioner because this is not a case where the witnesses are to be examined as court-witnesses for the just decision of the case. The complainant has sought to examine these witnesses to rebute the defence case and the Court has permitted to examine them because there is a lot of variance between the prosecution and defence witnesses. The learned lower court has, nowhere, observed that the examination of these witnesses is essential for the just decision of the case. When this is not the case, these witnesses who were cited by the complainant as his own witnesses and have been left by him, cannot be allowed to be examined as court-witnesses after the closure of the defence evidence to fill up the gap left by the prosecution or to rebut the defence case. When this is not the case, these witnesses who were cited by the complainant as his own witnesses and have been left by him, cannot be allowed to be examined as court-witnesses after the closure of the defence evidence to fill up the gap left by the prosecution or to rebut the defence case. I therefore, feel that the learned lower court has committed an illegality in accepting the application filed by the complainant to examine these two witnesses i.e. Shri Lunaram Patwari and Shri Pratapsingh Purwa, Advocate as court-witnesses. 7. In the result, I accept this revision set aside the order of the learned Munsif and Judicial Magistrate, Sardarshahar dated 2-1-1988 and remand the case back to the learned lower court to proceed with it in accordance with law.Revision Accepted. *******