JUDGMENT 1. - This is an application under Section 482 Criminal Procedure Code in case No. 72 of 1983 pending in the Court of Additional Chief Judicial Magistrate No. 2, Kota for offence under Section 4/9 of the Opium Act. 2. Alarming facts giving rise to this application are that accused petitioner is facing trial under Section 4/9 of the Opium Act ever since February, 1983 and for five years the prosecution evidence could not be completed but it was for the attitude of an Investigating Officer as early as 16-5-86 that Investigating Officer, Shri Shiv Rajsingh, A.S.I., was summoned and the case was listed for his evidence on 16-7-86. Witness was not present on 16-7-1986 hence, it was adjourned to 30th September 1986. The order-sheet of this date discloses that both Shiv Rajsingh and Govind Singh were absent despite service of summons. The reason for absence was also not disclosed. Hence, warrant of arrest was ordered to be issued along with the issuance of notice under Section 350 Criminal Procedure Code . After dictation of this order-sheet, another Shiv Rajsingh, A.S.I., appeared in the Court and said that he has been wrongly served and he is not a witness in the case. He stated that Shiv Rajsingh, A.S.I., who is to be examined, is posted in Bundi District hence, the Court ordered to summon him. Notices were ordered to be sent to Shiv Rajsingh, A.S.I. through Superintendent of Police, Bundi. The order-sheet discloses that since he did not appear despite service, ne should be summoned through non-bailable warrants. The case was then posted on 11-12-1986. Witness was neither present on 11-12-1986 nor on 15-1-1987 hence the case was adjourned. Fresh warrants were ordered to be issued against Shiv Rajsingh, A.S.I., on 18-2-1987 then again on 28-3-87 and 25-4-87. Once again it was written to the Superintendent of Police on 21-5-87 to ensure his presence. Court again recorded similar order-sheet on 20-6-87. He was again not present on 31-7-87 and then on 11-9-87. On this day last opportunity was given to the Public Prosecutor to produce the witness. Thus, 14 opportunities were given to the prosecution for the examination of the Investigating Officer of the case but the witness did not turn up which resulted in closing of the prosecution evidence and recording then statements of the accused. On this day last opportunity was given to the Public Prosecutor to produce the witness. Thus, 14 opportunities were given to the prosecution for the examination of the Investigating Officer of the case but the witness did not turn up which resulted in closing of the prosecution evidence and recording then statements of the accused. Accused examined one Abdul Wahid in his defence and closed his evidence on 21-1-1988. The case then listed for final arguments. Due to various reasons including strike in courts, the arguments could not be completed and suddenly on 2-8-1988, Public Prosecutor moved an application for examining Shri Shiv Rajsingh who was present in the Court according to the application. Public Prosecutor recorded in the application that in the interest of justice it is essential to examine this witness because it is he who has recovered the opium. The learned trial Court allowed the application, though it was strongly opposed by the accused, vide its order dated 8-8-1988 which is under challenge in this petition. 3. Learned counsel for the petitioner submits that Section 311 Criminal Procedure Code cannot be pressed into service for summoning a witness whose evidence has been closed by the Court after careful consideration because the party had refused to produce witness despite several applications and issuance of several processes by way of summons and warrants. It is submitted that once the evidence is closed at the instance of the Public Prosecutor himself then calling the witness shown in the calendar of witness is not contemplated in the section. It is submitted that after the statement of the accused is recorded and the defence is also examined, to permit a witness to be examined is to give an opportunity to the prosecution to nullify the effect of the defence of the accused. It is further submitted that it is unfair on the part of the prosecution first to drop the witness and then to insist upon recording his statement under Section 311 Criminal Procedure Code. Learned counsel for the petitioner has placed reliance on Jamatraj Kewalji Govani v. State of Mah. ( AIR 1968 SC 178 ) and Kanhaiya Lal v. State ( 1987 (II) RLR 615 ). 4. Learned Public Prosecutor has supported the order of the learned Magistrate and submitted that Shiv Raj Singh is an important witness and in the interest of justice his evidence should be recorded. ( AIR 1968 SC 178 ) and Kanhaiya Lal v. State ( 1987 (II) RLR 615 ). 4. Learned Public Prosecutor has supported the order of the learned Magistrate and submitted that Shiv Raj Singh is an important witness and in the interest of justice his evidence should be recorded. It is submitted that no prejudice will be caused to the accused by examining the witness. 5. I have heard the learned counsel for the parties at great length and perused the entire record. 6. Before I come to the merits of the case, I would deal with the cases relied upon by the learned counsel for the petitioner. 7. Jamatraj Kewalji Govani v. State of Maharashtra (supra) is a judgment under Section 540 of the Code of Criminal Procedure, 1898 which is equivalent to Section 311 of the Code of Criminal Procedure, 1973. In this case, their Lordships of the Supreme Court have observed as under : "Section 540 is intended to be wide as the repeated use of the word `any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first Part and of the word `shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in Court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one them, of if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the court is bona fide of the opinion that for the just, decision of the case, the step must be taken. it is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. it is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly". 8. Their Lordships in this case has clearly held that prosecution cannot be permitted to rebut the defence unless prisoner brings something suddenly and unexpectedly and secondly for the just decision but bonafide. In the instant case, I have already stated above that prosecution was given 14 opportunities to produce the Investigating Officer and repeated process have been issued but the Investigating Officer did not choose to appear or in other words, prosecution did not examine the Investigating Officer till the accused gave his statement and examined the witness in defence also. Thus, the observations made by their Lordships in the aforesaid case are applicable in the facts of this case also. 9. In Kanhaiya Lal v. State (supra), observed as under : "Powers under section 311 to call a witness should be exercised by Court only if strong case is made out. It should not be merely for filling up lacuna or to meet such situation of which defence can take use. It is very unfortunate that when the case is completely argued and the matter is posted for judgment, an application under section 311 is entertained. What could not be done directly or produced with charge-sheet cannot be permitted to be filed at fag-end of trial." 10. In this case also the record disclosed that the trial of the cases proceeded leisurely and the prosecution was responsible for the inordinate delay. It was because of the postponement of the final argument and judgment of the case that prosecution could get an opportunity of filing the application under Section 311 Criminal Procedure Code where too no strong case could be made out explaining the laches and the delay. It was because of the postponement of the final argument and judgment of the case that prosecution could get an opportunity of filing the application under Section 311 Criminal Procedure Code where too no strong case could be made out explaining the laches and the delay. A perusal of both the cases cited above, makes it clear that Court should not summon the witness under Section 311 Criminal Procedure Code unless it is of the opinion that prosecution could not have examined the witness at the appropriate time when they were summoned or that some such event had taken place because of which recalling of the witness was essential. It is not an idle formality for the courts to perform that on merely asking of the Investigating Officer or the Public Prosecutor, the witness should be examined after the statements of the accused are recorded. The record of the instant case shows that 14 opportunities had been given to the prosecution to produce the Investigating Officer in a case where huge quantity of opium had been recovered but he did not appear before the Court despite the warrants of arrest having been issued. It was really surprising that police, which is an agency for effecting the service of the summons and warrants itself showed its cold attitude in the case of opium smugglers and warrants were not even returned executed or unexpected to the Court resulting in closure of the prosecution evidence. Repeated postponement of the cases for several dates by itself has been condemned by their Lordships of the Supreme Court time and again and this Court also, has written to the higher authorities in the past but to no advantage. It is painful for the Court to watch as a silent spectator the attitude of an Investigating Officer towards the case he has investigated. Till few years before, Investigating Officers used to remain present with the Public Prosecutor in the Court when the trial of the case would start and they used to ensure the attendance of the witnesses but now are the days when Investigating Officers by themselves do not appear in the Court despite service of summons for days together with the result that either the prosecution evidence is closed or at least the trial is delayed. 11. 11. I have observed in more than couple of orders and sent the copies to the Home Department as well as the Police Head Quarter but it appears that none is bothered about prosecuting the criminal cases, once the charge-sheet is filed and the result is that maximum delay is caused when because of the police witnesses are not coming to the Court and this, thereafter that when the case is being heard for final disposal, the witness suddenly appears and the applications are moved for permitting the witness to be examined at this stage. The present case is not an exception to such a situation.Not only the accused had been examined in the instant case but the defence witnesses had also been examined and case was fixed for final arguments and decision. Examining the prosecution witness at that stage would, in my opinion, negative the effect of the stand taken by the accused and his case is likely to be prejudiced. In fact, if per chance the prosecution fails to establish its case, it would be because of sheer negligence and cold behaviour of the investigating Officer. Be that as it may, it could not be a ground for accepting the application under Section 311 Criminal Procedure Code unless in the application itself the Public Prosecutor would have disclosed as to why the delay in producing the witness was caused and further that his non-production would amount to denial of justice or in other words, it was essential for securing the ends of justice to have examined him. Nothing having been shown or written in the application, t, am unable to sustain the order passed by the learned Magistrate. 12. The result is that the application is allowed and the order passed by the learned Magistrate dated 8-8-88 is set aside. He is directed to proceed to hear the arguments and decide the case at an early date. Record of the case be sent forthwith.Application under section 482 allowed. *******