JUDGMENT 1. - The petitioner has filed this petition under section 482 Cr.P.C. against the order of Shri Ramchandra, Addl. Sessions Judge, Barmer in sessions case No. 37/96 passed on 4.4.1997 whereby the learned Sessions Judge allowed the application filed by the Public Prosecutor purporting to be under section 311 Cr.P.C. and allowed recalling of Dr. Hemant Kumar Singhal for the purpose of re-examination. It was further ordered that the copy of the document containing the opinion of the Medical Officer may also be produced and copy thereof be furnished to the accused before the statement of the above witnesses was recorded again. 2. Learned counsel for the petitioner has submitted that the opinion of the Medical Officer was furnished to the Investigating Officer. It was, therefore, part of the papers of the challan. The police/prosecution could, therefore, have produced the above paper along with the challan. Even at later stage when the Medical Officer was being examined, it was the duty of the P.P. to have put questions to the above witness with regard to his opinion orally and the document could have also been referred to during his examination. The respondent failed to produce the above document or to examine the Medical Officer with reference to the opinion expressed in the above document. Now by moving the above application under section 311 Cr.P.C. the prosecution wants to fill-up the lacunae left by it when it omitted to put the important question regarding the opinion of the Medical Officer with regard to the injuries sustained by the injured. When the prosecution is guilty of negligence and inadvertence and left gaps in the prosecution evidence, the powers under section 311 Cr.P.C. cannot be exercised to the detriment of the accused. If such exercise is made, the prosecution will enable itself to fill-up all the lacunae. Learned counsel has cited Narayanadas v. Union of India, 1996 Cr.L.R. (Raj.) 249 . This case was decided by me. Following observations were made for exercising the discretion conferred by Section 311 Cr.P.C.:- "By taking shelter under section 311 Cr.P.C. 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. Following observations were made for exercising the discretion conferred by Section 311 Cr.P.C.:- "By taking shelter under section 311 Cr.P.C. 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 gainsaid that Section 311 Cr.P.C. confers un-bridled 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. The prosecution did not at all care to conduct the case carefully. The omission, in my opinion, is subsequently 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." 3. In the instant case as per the fact alluded to above, I find that the prosecution was negligent when it omitted to produce the document containing the opinion of the Medical Officer and again when the Medical Officer was examined by omitting to put such question to him. If the application is allowed and the doctor is recalled, by examining the above Medical Officer., the prosecution will be able to fill up the gaps which is not the intention of the legislature in enacting Section 311 Cr.P.C. 4. For the above reasons, I allow the application and set aside the impugned order and dismiss the application moved by the prosecution under section 311 Cr.P.C.Revision allowed. *******