CAV ORDER Whether by exercising powers under Section 311 of the Code of Criminal Procedure, 1973 (for short “Cr. P. C.”) lacunae in prosecution case can be permitted to be filled up by ordering re-examination of the prosecution witnesses, after long lapse of time when arguments of the case from both the sides i.e. the prosecution as also the defence has already been concluded, is the primal issue to be decided in the present proceeding? 2. The criminal case, in which the petitioners stand charged under Sections 302/34 and 394 I.P.C. as also under Section 27 Arms Act, has a chequered history. In order to demonstrate that exercise of powers under Section 311 Cr. P.C. by the learned trial court was wholly unjustified, learned counsel appearing on behalf of the petitioners has produced the certified copy of the entire order-sheet of the learned trial court from the stage of receiving commitment order on 27.08.2007 till the order dated 24.04.2012 during which trial of the petitioners commenced, charges were framed against them, 13 witnesses were examined on behalf of the prosecution, material documents were exhibited and arguments from the prosecution side as also the defence side commenced and concluded, yet the trial of the petitioners has remained pending and has not been concluded till date without valid justification, though the petitioner no.1 is all along in judicial custody since 14.02.2007 i.e. for more than five and half years. The aforesaid order sheet has been taken on record and there is no objection either by the learned Additional Public Prosecutor appearing on behalf of the State or by learned counsel appearing on behalf of the informant, who appeared in this matter suo motu and was heard in view of the importance of the issues as also for ends of justice. 3. In order to appreciate the issues involved in the present case and in order to answer the question formulated and posed at the very outset, certain factual matrix of the criminal case, in brief, are required to be noticed, which are detailed in the following paragraphs. 4. 3. In order to appreciate the issues involved in the present case and in order to answer the question formulated and posed at the very outset, certain factual matrix of the criminal case, in brief, are required to be noticed, which are detailed in the following paragraphs. 4. P.W. 6 Bibhash Kumar Choudhary gave his fardbeyan to the police on 23.01.2007 at about 6.30 P.M. at Primary Health Centre, Balia, on the basis of which Balia P.S. Case No. 12 of 2007 dated 23.01.2007 for offences under Sections 394 and 302 of the Indian Penal Code as also under Section 27 of the Arms Act was instituted against three unknown miscreants. Admittedly, the petitioners are not named as accused in the FIR vide Annexure-1. During the course of investigation the petitioners were apprehended by the police and were remanded to judicial custody by the order of the court. The petitioner no.1 was put on Test Identification Parade on 12.03.2007, where the informant (PW 6) Bibhas Kumar Choudhary identified him as a member of the mob, allegedly responsible for the commission of the crime in question. Similarly, petitioner no.2 also was apprehended by the police and was put on T.I. Parade during course of which, he was also identified by a witness. On close of investigation, charge-sheet was submitted against the accused- petitioners and after taking cognizance, case was committed to the court of Sessions. Accordingly, record of the case was received by the learned Sessions Judge, Begusarai on 27.08.2007, who transferred the case to the court of learned Fast Track Court-I, Begusarai for trial and disposal. 5. It appears that the charge under Sections 302/34, 394 of the Indian Penal Code and under Section 27 Arms Act was framed against the petitioner no.1 on 25.09.2007. Subsequently, similar charge was framed against petitioner no.2 also and trial of both the petitioners was amalgamated on 13.02.2008 and proceeded together. On 04.03.2008 P.Ws. 1 and 2 were examined, cross-examined and were discharged. Similarly P.Ws. 3 and 4 were examined, cross-examined and were discharged on 12.03.2008 and 22.04.2008 respectively. 6. In the present case, P.W.5 Reena Kumari and P.W. 6 Bibhash Kumar Choudhary (informant of the case) claim to be eye witnesses of actual occurrence. PW 5 was examined on 29.04.2008 and was cross-examined in part, due to paucity of time. She was further cross-examined at length on 07.05.2008, whereafter, she was discharged. 6. In the present case, P.W.5 Reena Kumari and P.W. 6 Bibhash Kumar Choudhary (informant of the case) claim to be eye witnesses of actual occurrence. PW 5 was examined on 29.04.2008 and was cross-examined in part, due to paucity of time. She was further cross-examined at length on 07.05.2008, whereafter, she was discharged. Examination of PW 6 commenced on 20.05.2008 and it continued on 21.05.2008 and again on 22.05.2008, when after cross-examination he was discharged. Altogether ten charge-sheet prosecution witnesses were examined till 08.08.2008. 7. On 22.08.2008 a petition was filed on behalf of the prosecution for permitting it to examine one Ram Kumar Singh and Madhukar Kumar, who were not charge sheet witnesses, as PWs in support of the prosecution case. Though the prayer was opposed on behalf of the accused petitioners, yet learned trial court by his order dated 27.08.2008 allowed the prayer of the prosecution in terms of Section 311 Cr. P. C. P.W. 11- Ram Kumar Singh was examined on 27.08.2008, cross-examined and was discharged. Despite permission, Madhukar Kumar was neither produced nor examined on behalf of the prosecution on 27.08.2008. However, on 04.09.2008 a fresh petition was filed on behalf of the prosecution for allowing it to produce certain documentary evidence and for allowing to examine a witness for getting those documents exhibited. Despite opposition made on behalf of the accused petitioners, the aforesaid petition dated 04.09.2008 was allowed by an order dated 24.10.2008 and P.W. 12 Sanjay Singh was examined, cross-examined and was discharged on 24.10.2008 itself. 8. On 18.11.2008 on the basis of petition filed on behalf of the prosecution, the prosecution evidence was closed and the case was fixed for recording the statement of the accused persons under Section 313 Cr. P.C. Accordingly, on 20.12.2008, statement of both the petitioners was recorded under Section 313 Cr. P.C. where they denied the prosecution case and pleaded their innocence and false implication in the present case. On 27.01.2009, the defence evidence was also closed and case was fixed for arguments for its final disposal. 9. When the case was fixed for arguments for its final disposal, then a petition was filed on behalf of the prosecution on 24.02.2009 under Section 311 Cr. On 27.01.2009, the defence evidence was also closed and case was fixed for arguments for its final disposal. 9. When the case was fixed for arguments for its final disposal, then a petition was filed on behalf of the prosecution on 24.02.2009 under Section 311 Cr. P. C. The prayer of the prosecution was stoutly opposed on behalf of the accused petitioners by filing a rejoinder to the aforesaid petition, yet by order dated 30.03.2009, petition filed on behalf of the prosecution under Section 311 Cr. P. C. was allowed and T.I.P. charts of the petitioners were permitted to be brought on record by marking them as exhibits, and, accordingly, PW 13 Krishna Murari Rai was examined on 07.10.2009, who proved the writings and signatures on the T.I.P. charts, which were marked as Exhibits 7 and 7/1 respectively . Aforesaid P.W.13 was cross-examined and was discharged on 07.10.2009 itself. 10. Though the prosecution evidence had already been closed by an order dated 18.11.2008, but in view of order of the learned trial court allowing PW 13 to be examined by exercising his powers under Section 311 Cr. P. C., the prosecution evidence was once again closed on 28.10.2009. Statement of accused persons was once again recorded on 11.11.2009 under Section 313 Cr. P. C., but they adopted their previous statements already recorded on 20.12.2008. Evidence of defence was once again closed on 25.01.2010 and case was fixed for arguments for its final disposal. 11. Arguments in the case on behalf of the prosecution commenced on 15.03.2010 and it continued on 18.03.2010, 22.03.2010, 26.03.2010 and it finally concluded on 06.04.2010. Similarly, arguments from the side of defence, i.e. the accused petitioners commenced on 21.04.2010 and continued on 26.04.2010, 28.04.2010, 03.05.2010, 05.05.2010, 07.05.2010, 12.05.2010, 13.05.2010, 17.05.2010 and finally it concluded on 19.05.2010. After conclusion of the arguments from the side of defence i.e. accused petitioners on 19.05.2010, on request of the prosecution party, the case was fixed for 04.06.2010 for reply argument on law points, but no reply argument was made either on 04.06.2010 or on 08.06.2010 and again on 03.07.2010 despite opportunity given to the prosecution and despite adjournment of the trial of the petitioners on those dates. At that stage, instead of making reply argument, the prosecution chose to file a petition on 13.07.2010 under Section 311 Cr. At that stage, instead of making reply argument, the prosecution chose to file a petition on 13.07.2010 under Section 311 Cr. P. C. seeking permission to re-examine P.W. 5 Reena Kumari and P.W. 6 Bibhash Kumar Choudhary, who claim to be eye witnesses, and the star witnesses of the prosecution. Prayer made on behalf of the prosecution at that stage was vigorously opposed on behalf of the accused petitioners, yet by the impugned order dated 08.09.2010 the prayer of the prosecution to re-examine P.Ws. 5 and 6 has been allowed by the learned trial court. 12. The petitioners, being aggrieved by the aforesaid order dated 08.09.2010, have filed the present application under Section 482 Cr. P. C. questioning the correctness, legality and propriety of the impugned order and have prayed that the impugned order dated 08.09.2010 be quashed. 13. Learned senior counsel appearing on behalf of the petitioners has strenuously argued the matter and has submitted that by invoking jurisdiction of the Court under Section 311 Cr. P. C. the prosecution cannot be allowed to fill up the lacunae in the prosecution case. He has submitted that after examination of all the ten charge-sheet witnesses, learned trial court, by exercising its power under Section 311 Cr. P.C., permitted the prosecution to examine P.W. 11 and P.W. 12, though none of them were cited as witness in the charge-sheet. According to him, after close of prosecution evidence on 18.11.2008 and defence evidence on 27.01.2009, the prosecution filed a petition on 24.02.2009 under Section 311 Cr. P. C., which was also allowed by order dated 30.03.2009 and P.W. 13 was examined on 08.10.2009 and T.I. P. charts were brought on record and were marked as Exhibits 7 and 7/1. It is next contended that after examination of P.W. 13, the prosecution evidence was once again closed on 28.10.2009 and defence evidence was closed on 25.01.2010 and thereafter arguments on behalf of the prosecution commenced on 15.03.2010 and continued on several dates, and was finally concluded on 06.04.2010. Subsequently, arguments from the side of defence commenced on 21.04.2010 and continued on several dates and it was finally concluded on 19.05.2010. Subsequently, arguments from the side of defence commenced on 21.04.2010 and continued on several dates and it was finally concluded on 19.05.2010. According to the learned senior counsel, since the matter was argued on behalf of the defence on several dates pointing out the infirmities and lacunae in the prosecution case entitling the accused petitioners for acquittal, thereafter, in order to fill up lacunae in the prosecution case, a petition was filed belatedly on 13.07.2010 seeking permission to re-examine P.W. 5 and 6 in terms of section 311 Cr. P. C., which has been illegally and arbitrarily allowed by the impugned order dated 08.09.2010. It is lastly contended that P.Ws. 5 and 6 claim to be the eye witnesses of the occurrence, P.W. 6 attended the T.I. Parade and claimed to have identified the accused petitioners in the manner in which they participated in the commission of crime in question, P.Ws. 5 and 6 were examined and cross-examined in full details on different dates and they have stated everything in their deposition, which they ought to have stated about the prosecution case, but if there are certain lacunae in the prosecution evidence, which may entitle the petitioners for their acquittal in the criminal case, then that cannot be permitted to be filled up by re-examining P.W. 5 and 6. 14. Learned Additional Public Prosecutor appearing on behalf of the State and the learned counsel appearing on behalf of the informant have strenuously opposed the prayer made on behalf of the petitioners and have supported the impugned order. According to the learned counsel appearing on behalf of the informant, the powers under Section 311 Cr. P. C. can be exercised at any stage of any enquiry or trial. Therefore, according to him, learned trial court is fully justified in ordering for re-examination of P.Ws. 5 and 6 to answer the question of the prosecution as to who, out of those two accused , actually fired at the deceased. In support of his contention he has placed reliance on the judgments of the Hon’ble Apex Court in the case of Mohanlal Shamji Soni v. Union of India & Anr. [1991 Cri. L. J. 1521= AIR 1991 SC 1346 ], Zahira Habibullah Sheikh & Anr. v. State of Gujrat & Ors., [ 2006(3) PLJR (SC) 83 = AIR 2006 SC 1367 ], and, Iddar & Ors. V.Aabida & Anr., [2007 Cri. [1991 Cri. L. J. 1521= AIR 1991 SC 1346 ], Zahira Habibullah Sheikh & Anr. v. State of Gujrat & Ors., [ 2006(3) PLJR (SC) 83 = AIR 2006 SC 1367 ], and, Iddar & Ors. V.Aabida & Anr., [2007 Cri. L.J. 4313 = AIR 2007 SC 3029 ]. 15. In order to appreciate the rival submissions made on behalf of the parties, it would be apt to examine Section 311 Cr. P. C., which reads as follows: 311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 16. Section 311 Cr. P.C. is in two parts. The 1st part of Section 311 Cr. P. C. is enabling provisions and it gives powers to any court to summon and examine any person as witness at any stage of trial or inquiry. Exercise of powers under 1st part of Section 311 Cr. P.C. is not dependent upon the stage of inquiry or trial, but that power has to be exercised for the just decision of the case. The second part of Section 311 Cr. P. C. is mandatory in nature, where the court is obliged to summon and examine or recall and re-examine any such person, if the evidence of such person is essential for just decision of the case. The term “just decision of the case” used u/s 311 Cr. P. C. does not necessarily mean that an accused put on trial has to be convicted by adopting any fair means or foul. The term “just decision of the case” referred u/s 311 Cr. P. C., in my considered opinion, necessarily mean that the inquiry or trial with respect to an accused must be fair, impartial, and transparent one. By invoking jurisdiction under Section 311 Cr. P. C. the prosecution cannot be permitted to fill up its lacunae and inherent defects of the prosecution case. 17. Coming to the present case, P.W. 5 claims to be an eye witness. By invoking jurisdiction under Section 311 Cr. P. C. the prosecution cannot be permitted to fill up its lacunae and inherent defects of the prosecution case. 17. Coming to the present case, P.W. 5 claims to be an eye witness. Her deposition was recorded on 2 dates, i.e. on 29.04.2008 and again on 07.05.2008. She has given the entire narration of the occurrence in her deposition. Her deposition, which has been brought on record as Annexure-3, runs into 43 paragraphs and 8 pages. Similarly, P.W. 6, who not only claims to be the eye witness, but is the informant of the criminal case, was examined on 3 different dates i.e. on 20.05.2008, 21.05.2008 and again on 22.05.2008 and he has given the entire narration of the occurrence in question. His evidence has been brought on records as Annexure-4, which runs into 39 paragraphs and ten pages. He had full opportunity to disclose all the materials at his command. He had also participated in the T.l. Parade of the accused petitioners and identified them disclosing the manner in which they allegedly participated in the crime in question. Now, after such a detailed deposition and after conclusion of the arguments of the case from both sides, the prosecution wants that both P.Ws. 5 and 6 be re-examined and they should pin pointedly state as to who fired upon the deceased. 18. In the considered opinion of this Court, re-examination of P.Ws. 5 and 6 at this stage, after having learnt about the weaknesses of the prosecution case in view of the conclusion of the arguments from the side of the defence, would be contrary to the object and mandate of Section 311 Cr. P. C. for just decision of the case. If the impugned order dated 08.09.2010 passed by the learned trial court is allowed to stand and P.Ws. 5 and 6 are permitted to be re-examined by the prosecution, then it would certainly mean to allow the prosecution to fill up the lacunae in the prosecution case, which is not the object and scope of Section 311 Cr. P. C. The principles of presumption of innocence of an accused underlying in our criminal jurisprudence shall stand frustrated. 19. The scheme and mandate of Section 311 Cr. P. C. corresponding to Section 540 of the Cr. P. C. The principles of presumption of innocence of an accused underlying in our criminal jurisprudence shall stand frustrated. 19. The scheme and mandate of Section 311 Cr. P. C. corresponding to Section 540 of the Cr. P. C. 1898 (5 of 1898) came up for consideration before the Hon’ble Apex Court in the case of Mohanlal Shamji Soni v. Union of India (Supra). Paragraph-9 and 18 of the aforesaid judgment would be very relevant and are reproduced herein below: “9: The very usage of the words such as “any Court”, “at any stage”, or “of any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that this Section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the code. The second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.” x x x x x x “18. The next important question is whether S. 540 gives the Court carte-blanche drawing no underlying principle in the exercise of the extra-ordinary power and whether the said section is unguided, un-controlled and uncannalised. Though S. 540 (S. 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines S. 540, namely, evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.” [Emphasis of mine] 20. In the case of Rajendra Prasad vs. Narcotic Cell through its Officer-incharge, Delhi [ AIR 1999 SC 2292 = 1999 AIR SCW 2356] what would be the lacunae in the prosecution case and whether such lacunae can be permitted to be filled up, came up for consideration before the Apex Court. The Hon’ble Apex Court has explicitly held that the lacunae in the prosecution case must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage should normally go to an accused during the course of trial. For better appreciation paragraph-7 of the aforesaid judgment is re-produced herein below: “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 over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed 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.” 21. Not putting a question from P.Ws. 5 and 6 as to who fired upon the deceased despite their lengthy deposition cannot be termed that it was merely an inadvertence on the part of the Public Prosecutor. This was very pertinent question and if that has not been answered by the aforesaid P.Ws. Not putting a question from P.Ws. 5 and 6 as to who fired upon the deceased despite their lengthy deposition cannot be termed that it was merely an inadvertence on the part of the Public Prosecutor. This was very pertinent question and if that has not been answered by the aforesaid P.Ws. 5 and 6 despite their lengthy deposition, then in the considered opinion of this Court, that should not and must not be permitted to be added at this stage. 22. In the case of Zahira Habibula Sheikh vs. State of Gujrat (Supra) as also in the case of Iddar vs. Aabida (Supra) the scheme and mandate of Section 311 Cr. P.C. came for consideration before the Hon’ble Supreme Court, wherein it was held that Section 311 Cr. P.C. is not limited only for the benefit of the accused and the exercise of powers by the court to summon witness shall not be improper merely on the ground that the evidence support the case of the prosecution and not that of the accused. The power under this section is very wide and calls for no limitation. However, the Hon’ble Apex Court has cautioned that “the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of the judicial mind.” 23. Applying the aforesaid principles and keeping in mind that the powers under Section 311 Cr. P. C. has to be exercised for the just decision of the case, this Court is of the considered opinion that the learned trial court has not applied his judicial mind to the factual matrix of the case. Since P.Ws. 5 and 6 had deposed at great length and because of the weaknesses of the prosecution case, certain benefits may accrue to the accused persons, then after having heard the arguments of the defence counsel on so many dates pointing out the inherent defects in the prosecution case, learned trial court ought not have allowed the petition filed on behalf of the prosecution under Section 311 Cr. P.C. for re-examination of P.Ws. 5 and 6 in order to fill up the lacunae in the prosecution case. 24. P.C. for re-examination of P.Ws. 5 and 6 in order to fill up the lacunae in the prosecution case. 24. For the reasons recorded above and taking into consideration the factual matrix, the question formulated and posed in the first paragraph of this order has to be answered in negative. The powers under Section 311 Cr. P. C. cannot be exercised for permitting the prosecution to fill up the lacunae in the prosecution case. 25. In the result, the application stands allowed. The impugned order dated 08.09.2010 passed in Sessions Trial No. 393 of 2007, arising out of Balia P.S. Case No. 12 of 2007 by the learned Additional Sessions Judge, F.T.C.-I, Begusarai is hereby quashed. As the arguments from the side of prosecution and defence had already been concluded and only reply argument on law point was required to be made by the prosecution, and further taking into consideration that the petitioner no.1 is in judicial custody since 14.02.2007, i.e. more than five and half years, the learned trial court is hereby directed to make an endeavour to dispose of the trial at an early date preferably within a period of three months from the date of receipt/ production of a copy of this order.