JUDGMENT - MOHITE R.S., J.:---Rule. By consent Rule is made returnable forthwith. 2. This is an application made by the State of Maharashtra seeking to quash and set aside an order dated 25-6-2002 passed by the Judicial Magistrate, F.C., Ramtek in Criminal Case No. 895/98 and Criminal Complaint Case No. 244/2001 and for a direction that prosecution witness No. 1 Ramesh Jaiswal be recalled and that the prosecution be permitted to put questions in the nature of cross-examination in order to secure the ends of justice. 3. Respondent Nos. 1 to 4 are the four accused in both the complaints which are being tried before the J.M.F.C. Ramtek. Criminal Case No. 895/98 is a police case arising out of a charge-sheet filed by Police Station, Ramtek, whereas Criminal Complaint Case No. 244/2001 is a private complaint filed by the forest department through Assistant Wild Life Warden, Ramtek. It is not in dispute that both these cases are being clubbed and are being tried together as a police case and common evidence is being led in both these cases. It is also an admitted position that Advocate Shri M.P. Badar who appears for the petitioner in this application is prosecuting both the complaints. 4. The respondent Nos. 1 to 4 who are the accused are charged for committing offence under sections 9, 39, 48-A of the Wild Life Protection Act, under sections 3, 4 and 25 of the Arms Act and under section 429 r/w section 34 of the Indian Penal Code. The case pertains to the alleged shooting of wild black buck by the accused on 19-4-1998. The evidence of the prosecution in the case commenced on 7-5-2002 when prosecution witness No. 1 Ramesh Madhavprasad Jaiswal who is Police Patil of the village Kachurwahi was put into the witness box. The examination-in-chief concluded on 27-5-2002 and on this date the cross-examination commenced. At the end of the day further cross-examination was deferred to 29-5-2002, on which day it was completed in the evening. The certified copy of the evidence of this witness indicates that after the completion of the cross-examination, an endorsement was made by the J.M.F.C. indicating that prosecution had declined re-examination. 5. At the end of the day further cross-examination was deferred to 29-5-2002, on which day it was completed in the evening. The certified copy of the evidence of this witness indicates that after the completion of the cross-examination, an endorsement was made by the J.M.F.C. indicating that prosecution had declined re-examination. 5. On 13-6-2002, an application came to be made on behalf of the prosecution in the cases seeking the recall of prosecution witness No. 1 Shri Ramesh Jaiswal for re-examination and if necessary to declare P.W. 1 hostile and also put the questions as are permissible under sections 154 and 155 of the Evidence Act. The contention of the prosecution in this application was that this witness had concealed or suppressed certain material facts in his examination-in-chief. In this connection it was mentioned that the witness had concealed the fact that after the incident, on 21-4-98, the elder brother of accused No. 3 Jambhulkar alongwith with upsarpanch of village Hathodi and elder son of accused No. 4 Shri Baghele had brought one paper on which it was written that they had missed the way and on the way one person having a black buck tied to the bicycle and with a gun was coming and he put up the deer and cycle near the jeep and ran away. It was contended in the application that these facts were stated in the statement recorded by the Forest Officers on 26-4-98 but were concealed by the witness. Similarly it was contended in this application that extra judicial confession purported to be made by accused No. 4 Baghele on 27-4-98 to one Abdul Salam, R.F.O. which found reference in the statement recorded by the forest officer on 27-4-98 was also suppressed by this witness. 6. It is further contended that in the cross-examination this witness has stated that his statements were recorded by the forest officer on 21-4-98, 26-4-98 and 27-4-98. When, in fact the forest officer had recorded the statement of this witness only once i.e. on 27-4-98. It was lastly contended that there were other discrepancies in the examination-in-chief and cross-examination, e.g. this witness had stated in his cross-examination that at the time of spot panchanama, no Police Officers were present. Whereas, the spot panchanama (Exh. 91) was in fact signed by the Police Officer. It was lastly contended that there were other discrepancies in the examination-in-chief and cross-examination, e.g. this witness had stated in his cross-examination that at the time of spot panchanama, no Police Officers were present. Whereas, the spot panchanama (Exh. 91) was in fact signed by the Police Officer. One more incident is given regarding the witness stating in his cross-examination that the accused had come from Khindsi from a picnic. Whereas, in the statement recorded by forest officer, there was contrary version to the effect that the accused had come for hunting wild animals. 7. I have perused the record and gone through the complete evidence of P.W. 1 Ramesh Jaishwal. I find that the witness in his examination-in-chief broadly supported the prosecution case. As regarding the alleged suppression of material pertaining to a chit and extra judicial confession, mentioned here in above, I find at the end of examination-in-chief, an attempt was made to get this material on the record but the witness gave an answer that he could not recollect any other facts apart from what has been brought on the record in the examination-in-chief. At this stage, the learned Public Prosecutor who was conducting this case had an option of declaring this witness hostile, if he so desired, but he choose not to do so, according to me, correctly and wisely since this witness had broadly supported the prosecution case and had identified all the accused, all the weapons, vehicle and had also spoken about the villagers taking out a black buck from a jeep and bringing it in the Chhapari of his house. This witness has also deposed about the injuries on the neck of the black buck and oozing of blood from the injuries. 8. In the course of cross-examination which was conducted on 27-5-2002 and 29-5-2002, at no point of time the learned Prosecutor moved for declaring this witness hostile. Not only this, at the end of cross-examination, re-examination of this witness was declined. 9. The application for recalling of witness was made on the next day, i.e. on 13-6-2002. 8. In the course of cross-examination which was conducted on 27-5-2002 and 29-5-2002, at no point of time the learned Prosecutor moved for declaring this witness hostile. Not only this, at the end of cross-examination, re-examination of this witness was declined. 9. The application for recalling of witness was made on the next day, i.e. on 13-6-2002. It is contended by Shri Badar, Advocate appearing for the applicant that the Court had power to recall the witness at any stage under section 311 Cri.P.C. He placed reliance on the judgment of the Apex Court in the case of (Rajendra Prasad v. Narcotic Cell)1, A.I.R. 1999 Supreme Court 2292 in which the Apex Court has laid down the ratio that the power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. In the said case, the Apex Court has further observed as under : ".......The conventional concept is that Court should not permit lacuna in prosecution evidence to be filled up. But then what is meant by lacuna in a prosecution case has to be understood before deciding the case. A lacuna in prosecution is not to be equated with the fall out of an oversight committed by a Public Prosecution during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. No party in a trial can be fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 10. The question in the present case is not pertaining to power because I have no doubt that the Court has power to recall any witness. The question is, however whether this discretionary power is required to be exercised in the facts of the present case. The main thrust of the argument of Shri Badar, Advocate was that the witness has suppressed the subsequent fact relating to the chit and making of extra judicial confession by accused No. 4 which according to him were relevant. He contended that this had been intelligently done by this witness. I find from the record that the prosecutor had made an attempt to elicit this material on record in the examination-in-chief but the witness stated that he failed to recollect anything further and therefore, this attempt appears to have been given up. In my opinion, by stating that he does not recollect anything pertaining to these two incidents relating to chit and extra judicial confession, this witness has not expressly falsified the said incidents. There is ample opportunity to the prosecution to get these incidents proved by examining other witnesses who were concerned with the same. As regards the contention that this witness in the cross-examination has contradicted his forest statement as regards the purpose of visit of the accused and the police statement as regards the presence of the Police Officer at the time of panchanama (Exh. 91), the omission if any, could have been dealt with at the stage of re-examination, but that opportunity was not availed of. The presence of Police Officer at the time of spot panchanama is something that can be brought on record through further evidence of the prosecution. Some of the other discrepancies like, purpose of visit of the accused, etc. 91), the omission if any, could have been dealt with at the stage of re-examination, but that opportunity was not availed of. The presence of Police Officer at the time of spot panchanama is something that can be brought on record through further evidence of the prosecution. Some of the other discrepancies like, purpose of visit of the accused, etc. are of minor nature and if at all the prosecution wanted to throw any further light on the same, in my opinion, the same could have been done at the stage of re-examination. 11. The Advocate for the respondents has placed reliance on the judgment of the Apex Court in the case of (State of Bihar v. Lalu Prasad)2, reported in A.I.R. 2002 S.C.W. 2667. In that case the witness called by the prosecution had realised from his expected stand even in examination-in-chief but at that stage the prosecutor did not seek permission to cross-examination. The cross-examination was also allowed to be completed and at the end of the cross-examination an application was made to cross-examine the witness. In that case reliance was placed in the earlier judgment of the Apex Court in the case of (Dayabhai Chhaganbhai Thakkar v. State of Gujarat)3, A.I.R. 1964 S.C. 1563. The Apex Court held as under :- "4. Learned Counsel for the appellant invited our attention to the decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, 1964(7) S.C.R. 361 in support of his contention that it is open to the party who calls the witness to seek the permission of the Court (as envisaged in section 154 of the Evidence Act) at any stage of the examination. 5. Nonetheless a discretion has been vested with the Court whether to grant the permission or not. Normally when the public prosecutor request for permission to put cross questions to a witness called by him the Court used to grant it. Here if the Public Prosecutor had sought permission at the end of the chief-examination itself the trial Court would have no good reason for declining the permission sought for. But the Public Prosecutor did not do so at that stage. That is precisely the reason why the trial Judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. But the Public Prosecutor did not do so at that stage. That is precisely the reason why the trial Judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. The witness has said only the details in cross-examination regarding the matter which he said in the chief-examination itself. It would have been a different position if the witness stuck to his version he was expected to say by the party who called the witness, in the examination-in-chief, but he showed propensity to favour the adverse party only in cross-examination. In such case the party who called him has a legitimate right to put cross questions to the witness. But if he resiled from his expected stand even in-chief-examination the permission to put cross questions should have been sought then. 6. In the above situation we are unable to hold that the trial Judge has gone wholly wrong in declining to exercise the discretion envisaged under section 154 of the Evidence Act in favour of the appellant. Be that as it may, if the Public Prosecutor is not prepared to own the testimony of the witness examined by him he can give expression of it in different forms. One of such forms is the one envisaged in section 154 of the Evidence Act. The very fact that he sought permission of the Court soon after the end of the cross-examination was enough to indicate his resolve not to own all what the witness said in his evidence. It is again open to the public prosecutor to tell the Court during final consideration that he is not inclined to own the evidence of any particular witness in spite of fact the said witness was examined on his side. When such options are available to a public prosecutor it is not a useful exercise for this Court to consider whether the witness shall again be called back for the purpose of putting cross questions to him." 12. The learned Advocate for the respondents raised other contentions pertaining to the admissibility of the statement recorded by the forest department. In this regard Shri Badar, the learned Counsel for the petitioner has also furnished a judgment of this Court indicating that such statements were not admissible under section 25 of the Evidence Act as the forest officer is not a Police Officer. In this regard Shri Badar, the learned Counsel for the petitioner has also furnished a judgment of this Court indicating that such statements were not admissible under section 25 of the Evidence Act as the forest officer is not a Police Officer. The question relating as to whether the statement made before the forest officer is admissible is not germane and is not necessary to be gone into while deciding this application and that question is left open. It is also clarified that all contentions taken by both the sides which are not decided, are left open. 13. In the present case, I find that the trial Court has rightly exercised his discretion in disallowing recall of the prosecution witness No. 1 Ramesh Jaiswal because I do not feel that any irreparable lacuna has crept into the prosecution case by the non recalling of this witness. In the circumstances, the rule is discharged. -----