Hon'ble SHARMA, J.—This criminal misc. petition U/s. 482 CrPC has been filed against the order dated 29.6.2012 passed by Additional Sessions Judge No.2, Deeg, District Bharatpur in Sessions Case No. 86/2011, by which the application filed by the complainant respondent no.2 U/s. 311 CrPC for summoning five prosecution witnesses for their examination afresh has been allowed. 2. Brief facts of the case are that complainant Babu Lal submitted a written report on 1.6.2011, which was registered as FIR for the offence U/s. 302/34 IPC. It was mentioned in the aforesaid report that while he was attending the engagement of son of one Bhikko, his brother namely Ballo came to him. At the same time, the petitioners were armed with fire arms and the accused petitioner no.1 fired a gun shot at his brother, as a result of which he sustained fire arm injury on his stomach. Thereafter, he was taken to the Hospital, where he died. 3. After concluding the investigation, the police filed a charge sheet against the accused petitioners for the offence U/s. 302 readwith section 34 IPC and 3/25 of Arms Act. 4. After committal of the case, the trial court framed the charges against the petitioners no. 1 and 2 for the offence U/s. 302 IPC and 3/25 Arms Act and 302/34 IPC and 3/25 of Arms Act respectively, to which the petitioners pleaded not guilty and claimed trial. 5. During the course of trial, the prosecution witnesses namely Sher Singh (PW-9), Yogesh (PW-8), Banwari (PW-11), Govind (PW-12) and Babu (PW-10) including other witnesses were examined by the trial court. In all 16 witnesses were examined by the trial court. After that the complainant submitted an application U/s. 311 of Criminal Procedure Code. 5. During the course of trial, the prosecution witnesses namely Sher Singh (PW-9), Yogesh (PW-8), Banwari (PW-11), Govind (PW-12) and Babu (PW-10) including other witnesses were examined by the trial court. In all 16 witnesses were examined by the trial court. After that the complainant submitted an application U/s. 311 of Criminal Procedure Code. In that application, it was alleged that: ^^1- ;g fd ifjoknh us fnukad 1-6-2011 dks ,d izFke lwpuk fjiksVZ Fkkuk dkaek ij bl vk'k; dh ntZ djkbZ fd vkt djhc 3 cts 'kke dks gekjs xkWods fHkDdks Bkdqj ds yM+ds dh lxkbZ lekjksg esa izkFkhZ gyokbZ ds ikl dke dj jgk Fkk ogkW ij psrjke czkã.k o dqUtks Bkdqj gekjs xkWo ds igys ls gh e; gfFk;kjksa ds ys[k cSBs FksA esjs HkkbZ oYyksa ogkW igqpk rks psrjke o dqUtks u sviuh canwd ls Qk;j fd;s esjs HkkbZ oYyksa mUgsa ns[kdj fNius yxk rks psrjke us esjs HkkbZ oYyksa ds isV esa xksyh ekjh esjk HkkbZ cuokjh o oYyksa dk yM+dk xksfoUn cpkus Hkkxk rks mudh rjQ Hkh dqUtksa o psrjke us xksyh pykbZA os vksV ys x;sA esjk HkkbZ xksyh yxus ls tehu ij fxj x;k ftlds vk/kkj ij Fkkuk dkaek ij eqdíek ,Q-vkbZ-vkj- la-253@2011 Fkkuk dkaek ij ntZ gqbZA 2- ;g fd vfHk;qäx.k us esjs HkkbZ dh e`R;q dh gS rFkk esjs Hkrhts gseUr dk vigj.k dj fy;k FkkA ftlds ncko esa vkdj fnukad 3-2-2012 dks vius i{k esa xokgh djkyh FkhA mä xokgh geus gseUr dk vigj.k gks tkus ds dkj.k ncko esa vkdj nh FkhA vc ge iqu% nqckjk vius c;ku Jheku~ U;k;ky; ds le{k nsuk pkgrs gSA vr% izkFkZuk i= is'k dj fuosnu gS fd xokgku ;ksxs'k] 'ksj flag] cuokjh o xksfoUn izkFkhZ ckcw ds c;ku U;k;fgr esa nqckjk fy;s tkus dh —ik djsA** 6. Thereafter the petitioners submitted reply. The learned trial court, after hearing the arguments of both the parties, allowed the application (Annexure-1) filed by the complainant, vide order dated 29.6.2012. Against the said order, this criminal misc. petition U/s. 482 CrPC has been preferred for quashing the setting aside the order dated 29.6.2012 passed by Additional Sessions Judge No.2, Deeg, District Bharatpur. 7. Mr. Anurag Sharma, learned counsel for the petitioners has contended that the order dated 29.6.2012 passed by the court below is contrary to the facts of the case and material available on record. petition U/s. 482 CrPC has been preferred for quashing the setting aside the order dated 29.6.2012 passed by Additional Sessions Judge No.2, Deeg, District Bharatpur. 7. Mr. Anurag Sharma, learned counsel for the petitioners has contended that the order dated 29.6.2012 passed by the court below is contrary to the facts of the case and material available on record. He has further contended that the trial court has not considered and appreciated the provisions of law contained U/s. 311 of Criminal Procedure Code. He has further drawn the attention on the judgment rendered by Hon'ble Apex Court in the case of Jahida Habibulla Sheikh vs. State of Gujarat reported in (2006) 3 SCC 374 . He has further contended that the law does not permit fresh examination of the witnesses when the statement had already been recorded before a court of law. 8. On the other hand, learned Sr. Counsel Mr. Biri Singh Sinsinwar assisted by Mr. Mukesh Saini and learned PP appearing for the State have opposed the arguments advanced by Mr. Anurag Sharma, counsel for the petitioners. First of all, drew my attention towards Section 311 of CrPC, which is reproduced as under: “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.” 9. He has further contended that trial court after considering the facts and circumstances of the case, has passed the impugned order to give justice. He has further drawn the attention of this Court on the judgment delivered by Hon'ble Apex Court in the case of U.T. of Dadra and Haveli and Another vs. Fatehsinh Mohansinh Chauhan reported in JT 2006 (7) SC 419. He has further drawn the attention of this Court on the judgment delivered by Hon'ble Apex Court in the case of P. Sanjeeva Rao vs. The State of A.P. Reported in JT 2012 (6) SC 3, the relevant paras of which are as under:- “9. He has further drawn the attention of this Court on the judgment delivered by Hon'ble Apex Court in the case of P. Sanjeeva Rao vs. The State of A.P. Reported in JT 2012 (6) SC 3, the relevant paras of which are as under:- “9. The appellant who was working as Sub Divisional Officer in the B.S.N.L., Karimnagar, is accused of having demanded and received a bribe of Rs.3,000/- from the complainant who was examined as PW1 at the trial. The trap led by the CBI in which PW2 was associated as an independent witness is said to have succeeded in catching the petitioner red-handed with the bribe money eventually leading to the filing of a charge-sheet against him before the Court of Special Judge for CBI cases at Hyderabad in March, 2005. Charges were framed against the petitioner on 7th December, 2006. While PW1, the complainant in the case, was examined on two different dates i.e. 3rd March, 2008 and 13th June, 2008, prosecution witness No.2 was similarly examined on 18th July, 2008 and 31st July, 2008. It is common ground that both the witnesses have stood by the prosecution case for they have not been declared hostile by the prosecution. This implies that the depositions of the two witnesses are incriminating against the appellant and in the absence of any cross-examination their version may be taken to have remained unchallenged. It is also common ground that PWs. 3 to 11 were examined during the period 31st July, 2008 and 28th December, 2011.The Trap Laying Officer (PW 11) was examined on 18th February, 2010 and on 1st April, 2010. The two applications referred to earlier were filed before the Trial Court at that stage, one asking for recall of PWs. 1 & 2 for cross-examination and the other asking for a deferring that the cross-examination of PW 12 till PWs. 1 and 2 are recalled and cross-examined.” “12. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram vs. The State of Rajasthan & Ors. (2008) 15 SCC 652 . This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. (2008) 15 SCC 652 . This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. This Court observed: “This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched 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 it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas 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 judicial mind.” 10. In Mohanlal Shamji Soni vs. Union of India and Another reported in 1997(68) ECR 783 it was observed that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defene to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. It was further held that 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. It was emphasized that power is circumscribed by the principle that underlines Section 311 cr.P.C., 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. Further, that the power must be used judicially and not capriciously or arbitrarily. It was emphasized that power is circumscribed by the principle that underlines Section 311 cr.P.C., 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. Further, that the power must be used judicially and not capriciously or arbitrarily. It was further observed that evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case. Rajendra Prasad vs. Narcotic Cell 1999 AIR (SC) 2292 is a decision where the contention that the prosecution should not be permitted to fill in lacuna was examined having regard to the peculiar facts where the exercise of power under Section 311 Cr.P.C. second time was challenged and, therefore, it is necessary to notice the facts of the case in brief. The accused along with some other persons was facing trial for offenes under Sections 21, 25 and 29 of the NDPS Act. The prosecution and the defence closed their evidence on 19.9.1997 and the case was posted for further steps and on 7.3.1998, after few more dates, at the instance of the prosecution two witnesses who had already been examined were reexamined for the purpose of proving certain documents for prosecution. After they had been examined and the evidence had been closed, the case was posted for hearing arguments, which was heard in piecemeal on different dates. Subsequently on 7.6.1998, the Public Prosecutor moved an application seeking permission to examine Dalip Singh, S.I. And two other persons. Though, the application was strongly opposed by the counsel for the accused, the trial Court allowed the same in exercise of its power under Section 311 Cr.P.C. and summons were issued to the witnesses. The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court. Though, the application was strongly opposed by the counsel for the accused, the trial Court allowed the same in exercise of its power under Section 311 Cr.P.C. and summons were issued to the witnesses. The challenge raised to the order of the learned Sessions Judge by filing a revision was dismissed by the High Court. In appeal before this Court it was contended that in the garb of exercise of power under Section 311 CrPC, a Court cannot allow the prosecution to reexamine prosecution witnesses in order to fill up lacuna in the case specially having regard to the fact that Dalip Singh witness was never tendered by the prosecution for cross-examination and PW 4 Suresh Chand Sharma had also not been cross-examined by the State. Repelling the contention raised on behalf of the accused it was held: “7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under section 165 of the Evidence Act, 1872 by saying that the court could not “fill the lacuna in the prosecution case”. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor 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 a lacuna which a court cannot fill up.” 8. 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 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. 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.” a.k.a Finally, it was held that the proposition that the court cannot exercise power of re-summoning any witness if once that power was exercised, cannot be accepted nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during arguments. Similar view has been taken in P. Chhaganlal Daga vs. M. Sanjay Shaw 2003 (11) SCC 486 where permission granted by the court to a complainant to produce additional material after evidence had been closed and case was posted for judgment was upheld repelling the contention that production of the document at that belated stage would amount to filling in a lacuna.” 11. Having heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order, I do not think it proper to interfere in the impugned order passed by the court below and the criminal misc. petition being bereft of any substance stands dismissed. Stay application also stands dismissed.