Judgment 1. Heard Sri Awadhesh Kumar Mishra, learned counsel for the petitioner, Sri Jharkhandi Upadhyay, learned A. P. P. for the State and Sri Rajendra Narayan, the learned counsel for the O.P. No. 7. 2. The petitioner is aggrieved by order dated 26.8.2004 passed in Criminal Revision No. 105 of 2003 by Sri R.S. Roy, the learned IVth Additional Sessions Judge, Siwan whereby and whereunder he set aside the order dated 9.4.2003 passed by Sri 0. Kamdulana, learned Executive Magistrate, Siwan in Case No. M-1592/98, Tr. No. 37/2003 in a proceeding under Sec.145 Cr.P.C. whereby he has recalled Tarkeshwar Upadhyay under Sec.311 Cr.P.C. for further cross-examination. 3. Assailing the order of the learned Addl. Sessions Judge it was sought to be submitted that the court has ample power under Sec.311 Cr.P.C. to examine witness at any stage whenever it considers that the evidence of the said witness is essential. In this connection, the learned counsel for the petitioner sought to impress that since Tarkeshwar Upadhyay had not been examined by the second party, the ends of justice required an opportunity be given to the second party to cross-examine witness Tarkeshwar Upadhyay and the order of the learned Executive Magistrate was clear on this issue that it was only Tarkeshwar Upadhyay who was being recalled for his cross-examination. Accordingly, it was submitted that the learned Additional Sessions Judge had clearly erred in his conception regarding the ambit of power under Sec.311 Cr.P.C. since it was not the case of review as held by him but was a case of recall of witness under the provisions of Sec.311 Cr.P.C. 4. I am unable to agree with the submissions of the learned counsel for the petitioner. It appears that the evidence of the 1 st party was closed on 30.4.2002 and after the second party had adduced the evidence case was fixed for arguments. At this point of time there was no requirement for the learned Executive Magistrate to have acted under the provisions of Sec.311 Cr.P.C. to recall witness Tarkeshwar Upadhyay for his evidence. Court should remember that the purpose of the power under 311 Cr.P.C. is not to enable one party or the other to fill up gaps in his case and to improve it by new matter at a late stage. Court should remember that the purpose of the power under 311 Cr.P.C. is not to enable one party or the other to fill up gaps in his case and to improve it by new matter at a late stage. The fault lay when the first party in not attending the court for such a long period after his partial cross-examination. In that view of the matter the order of the learned Additional Sessions Judge is fully justified. 5. At the same time the order of the learned Executive Magistrate cannot be sustained in law. It is apparent from the counter affidavit filed by the O.P. No. 7 that the 1st party had adduced the evidence of only one witness Dev Mahto on 2.12.2000 and before this date at least 50 adjournments were taken and once even cost was also imposed, whereafter the evidence of witness Tarkeshwar Upadhyay was started and it continued for 2-3 dates upto 20.1.2001 when he was partially cross-examined and thereafter notwithstanding further adjournments the said witness never turned up for completion of his cross-examination and the court had no other option except closing the evidence of the 1st party by order dated 30.4.2002. This was followed by second party adducing its evidence and when the case was fixed for argument the first party filed a petition on 25.3.2003 for recalling witness Tarkeshwar Upadhyay under Sec.311 Cr.P.C. for completing his evidence but the learned Executive Magistrate by a criptic order allowed the same and permitted the further cross-examination of witness Tarkeshwar Upadhyay without assigning any reasons for exercise of his power under Sec.311 Cr.P.C. 6. Due regard being had to the facts and the circumstances of the case, I find no merit in this application which is accordingly dismissed.