JUDGMENT 1. 1. The accused-petitioner has filed this petition Under Section 482, Criminal Procedure Code for setting aside the order dated 21st October, 1995 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 126/93, State v. Narayan Das and Ors. , whereby the learned Sessions Judge suo motu directed recalling of witness Shri K.L. Sharma (PW 10), the then Opium Officer, Pratapgarh. 2. Relevant facts of the case are that the accused is being tried for an offence punishable under Section 8/18 of the N.D.P.S. Act (for short, `the Act') by the learned Sessions Judge, Pratapgarh. The trial was complete and arguments were also heard by learned Sessions Judge but before dictating the judgment, learned Sessions Judge found that Shri Rajnarain Srivastava, Inspector (Narcotics) who got the information on 4.5.1993 regarding the above offence, recorded it and forwarded the same to the District Opium Officer Shri K.L. Sharma but the prosecution did not produce the relevant information and it was also not proved during the trial. He, therefore, came to the conclusion that the evidence of Shri K.L. Sharma was essential to the just decision of the case. Hence, by the impugned order, the above witness Shri K.L. Sharma (PW 10) was ordered to be summoned for evidence. 3. I have heard learned counsel for the petitioner as well as learned Public Prosecutor for Union of India. 4. Learned counsel for the petitioner has challenged the above order on the ground that from the order impugned itself it is clear that the learned Sessions Judge came to the conclusion that the prosecution omitted to produce the vital document i.e. information recorded by Shri Raj Narain Srivastava which he received secretly on 4.5.1993. Learned Judge also felt that it was necessary for the prosecution, in order to prove the offence charged against the accused, to examine Shri K.L. Sharma so that the above document could be produced. Learned counsel further submitted that Section 311, Criminal Procedure Code confers a wide discretion on courts to act as the exigency of justice requires. However, such discretion has to be exercised judiciously. The power under this Section is special power and that should be used sparingly on appropriate occasions. The power under this Section should not be used to fill up gaps deliberately left by one of the parties to the case. However, such discretion has to be exercised judiciously. The power under this Section is special power and that should be used sparingly on appropriate occasions. The power under this Section should not be used to fill up gaps deliberately left by one of the parties to the case. Learned counsel has referred to the cross-examination of Shri Raj Narain Srivastava (PW 5) and Shri K.L. Sharma (PW 10) and submitted that these two witnesses were specifically cross-examined with respect to the information received by Shri Raj Narain Srivastava. The purpose of the accused was to take advantage, if available, Under Section 42(2) and 42(3) of the Act. Even then the prosecution did not realise the lacuna existing in the case. Even after the arguments, realisation did not dawn on the prosecution that the above lapse or lacuna was fatal to the prosecution. The learned Sessions Judge, by making the order impugned has come to rescue of the prosecution so that by the examination of the above witness the report, if any, could be brought on record and the lacuna left by the prosecution, rather deliberately, may be filed. This is not the object and intention of provisions of Section 311, Criminal Procedure Code. 5. In support of his submissions, learned counsel for the petitioner has referred to decision of this Court in Ganpat Ram v. State of Rajasthan, reported in 1992 CrLR (Raj.) 602 . In that case also trial court recalled the witnesses for examination at the time of dictating the judgment. It was held that Section 311, Criminal Procedure Code cannot be invoked to fill up the gaps and lacunae left by the prosecution. The order impugned in that case was therefore quashed. In an another case, Magan Singh v. State of Raj., reported in 1990 CrLR (Raj.) 611 , this Court again referred to guiding principles for invoking discretion conferred by Section 311, Criminal Procedure Code. It was cautioned in that case that the Court has not to act as investigating agency by recalling the witness in the manner it was done. 6. Learned Public Prosecutor has supported the order of learned Sessions Judge on the ground that under Section 311, Criminal Procedure Code court has got unrestricted discretion to decide whether a particular witness in the facts and circumstances, appear reasonable for the just decision of the case. 6. Learned Public Prosecutor has supported the order of learned Sessions Judge on the ground that under Section 311, Criminal Procedure Code court has got unrestricted discretion to decide whether a particular witness in the facts and circumstances, appear reasonable for the just decision of the case. In the instant case, learned Sessions Judge before he could pronounce the judgment, came to the conclusion that examination of Shri K.L. Sharma (PW 10) was absolutely necessary in order to decide the matter in a judicial way. Learned Public Prosecutor therefore, submitted that the discretion so exercised by learned Sessions Judge should not be interfered with. 7. I have considered the rival contentions. At the very outset it may be submitted that the prosecution has not at all cared to place on record the information recorded by Shri Raj Narain Srivastava (PW 5) on the basis of secret information received by him. This fact was also not stated whether the above recorded information was forwarded to the District Opium Officer Shri K.L. Sharma. This fact assumes importance if we examine the trend of cross-examination of PW 5 and PW 10. Learned counsel for the accused asked pointed questions regarding this aspect of the matter. It appears that the accused was trying to avail the benefit in accordance with Section 42(2) of the Act. This was a sufficient notice to the prosecution regarding his obligation to file and prove the above report. It appears that the prosecution deliberately, after due notice of obligation to prove this document in evidence, omitted to take any step. 8. In Ganpat Ram's case (supra), this Court elaborately analysed the guidelines for exercising powers for re-calling a witness under Section 311, Criminal Procedure Code. It was observed : "The object of this Section is to enable the Court to arrive at the true conclusion irrespective of fact that the prosecution or the defence has failed to produce some witness(es) which is necessary for the just and proper disposal of the case. But this direction, vested in the trial court, has to exercised judiciously and with great caution and circumspection. Though wide powers have been given to the court, but these powers are to be exercised within the limits and are not meant to exercised/used for the purpose of enabling the prosecution to fill up the gaps left by the prosecution in its case. Though wide powers have been given to the court, but these powers are to be exercised within the limits and are not meant to exercised/used for the purpose of enabling the prosecution to fill up the gaps left by the prosecution in its case. If the prosecution neglected to elicit essential facts, to prove the charges against the accused then the powers vested under Section 311 Criminal Procedure Code cannot be invoked to rectify the latches of the prosecution and to fill up the lacunae left. It is not the intention of Section 311 Criminal Procedure Code to re-call and re-examine the witness to fill up the gaps and lacunae left by the prosecution." 9. In another case, that of Magan Singh's case (supra) this Court again cautioned that by taking shelter under Section 311 Criminal Procedure court cannot act as investigating agency by recalling a witness inasmuch as the prosecution cannot be allowed to fill up the gaps left by the prosecution, more so when the omission is a deliberate one. It cannot be gain - said that Section 311 Criminal Procedure code confers unbridled powers on the courts to recall any witness for re-examination but the courts have to exercise this discretion in a judicious manner and not arbitrarily. The court is restricted to exercise this power when the effect of such an order will amount to give the prosecution an opportunity to fill up the gap left by it in the case. When such an omission is deliberate, exercise of such powers by a trial court must be checked. 10. In the instant case the prosecution did not at all care to conduct the case carefully. The omission, in my opinion, is squarely deliberate. Hence, if on account of such a deliberate omission some lacuna is left and the accused claimed benefit under Section 42(2) of the Act, the same cannot be denied. 11. For the above reasons, I accept this miscellaneous petition and set aside the order impugned dated 21.10.1995 passed by learned Sessions Judge, Pratapgarh. The case is ripe and it is expected that learned Sessions Judge will dispose of the case expeditiously.Petition Allowed. *******