JUDGMENT 1. - This petition under section 482 of the Code of Criminal Procedure, 1973 (the Code) is directed against the order dated 7.9.1992 passed by the learned Additional Special Judge-cum-Additional Sessions Judge, Ajmer in criminal case no. 115/92. The brief facts are as under:- 2. The petitioner had been employed with the Mayo College, Ajmer and a departmental enquiry was being conducted against him. The enquiry file was found missing from the office of the Estate Officer and the petitioner was suspected to have stolen the same. On the report of the Estate Officer, case FIR No. 25/86 was registered in Police Station Alwar Gate, Ajmer. After the investigation of the case, a challan was submitted against the petitioner in the court of the learned Judicial Magistrate No. 2, Ajmer with the allegations that the enquiry file had been stolen by the petitioner, who had got the same recovered during the course of investigation. The petitioner pleaded not guilty to the charge and was tried by the learned Judicial Magistrate No. 2, Ajmer, who convicted him under section 380 of the Indian Penal Code (Indian Penal Code) and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs. 200/- and, in default of payment of fine, to undergo simple imprisonment for a further period of three months vide the judgment dated 11.6.1991 passed in criminal case No. 1956/86. The appeal filed by the petitioner was heard by the learned Additional Special Judge-cum-Additional Sessions Judge, Ajmer, who, vide the impugned order, observed that the statement of the Investigating Officer of the case was necessary for the just decision of the case and the learned trial court ought to have examined him under section 311 of the Code and it having not been done he should be summoned as a witness under section 391 of the Code to be examined by the learned Appellate Court itself. Feeling aggrieved, the petitioner has Approached this court by filing this petition. 3. I have heard the learned counsel for the parties and have also perused the record of the case. 4. From the record I find that since the I.O. was not produced after issuing of the summons vide order dated 2.7.1990, bailable warrants were issued by the learned trial court for 30.7.1990. 3. I have heard the learned counsel for the parties and have also perused the record of the case. 4. From the record I find that since the I.O. was not produced after issuing of the summons vide order dated 2.7.1990, bailable warrants were issued by the learned trial court for 30.7.1990. Even on 30.7.1990 the evidence was not produced and fresh warrants were issued for 27.8.1990, but, again the warrants were not executed and the I.O. did not appear before the court and on that date the case was adjourned to 11.9.1990 with the observations that that was the last opportunity being given to the prosecution. Even on 11.9.1990 the prosecution did not execute the warrants and produce the I.O. and the case was again adjourned to 5.10.1990 with similar observations and same thing happened on 5.10.1990 and on 24.10.1990 to which date the case was adjourned and, on that date the learned trial court adjourned the case to 5.11.1990 again observing that that was the last opportunity being given to the prosecution. On 5.11.1990 again the witness was not produced and the learned trial court closed the evidence of the prosecution and, thereafter, recorded the statement of the petitioner under section 313 of the Code and also recorded his defence evidence. The prosecution not only made no attempts to produce its remaining evidence including the I.O. during the time fixed for its evidence but also did not even take trouble of filing an application explaining the reasons for non-production of the I.O. or seeking an opportunity to produce him and even during the hearing of the appeal no such application was moved on behalf of the State. Section 311 of the Code, the mention of which had been given in the impugned order, empowers a court to examine any witness, at any time, by issuing process or otherwise and, as noted above, in the present case, the learned trial court did whatever was possible for it to procure the attendance of the I.O. but the prosecution had failed to produce him and, even after the prosecution evidence was closed, took no steps to request either the learned trial court or the learned Appellate Court to give an opportunity to it to produce the I.O. Taking into consideration all these facts it cannot be said that the learned trial court was not justified in closing the evidence of the prosecution or that there was any ground for interfering with the discretion lawfully and justifiably exercised by the learned trial court. The learned Appellate Court has clearly erred in passing the impugned order under section 391 of the Code. Even otherwise, as has been held by the Apex Court in case Bir Singh and others v. State of Uttar Pradesh (AIR, 1978 SC 59) , the power to record additional evidence cannot be exercised to fill in the lacuna left in the case of the prosecution and this is what the learned Appellate Court has done by passing the impugned order. 5. Consequently, this petition is accepted, the impugned order dated 7.9.1992 is set aside and it is directed that the learned Appellate Court should decide the appeal of the petitioner on the basis of the material already before it.The record of the learned trial court as also the learned Appellate Court be sent back to the learned Appellate Court immediately. *******