JUDGMENT : N. Kotiswar Singh, J. Heard Ms. K Neeru, learned counsel for the petitioner. Heard also Mr. H. Samarjeet, learned additional PP for the State. 2. The present petition has been preferred against the order dated 29.04.2017 passed by the Court of Special Judge (POCSO), Imphal West in Cril No. 14 of 2017 by which the application of the Prosecution filed under Section 311 Cr.P.C., 1973 for allowing to examine an additional witness who was not earlier listed in the charge sheet was allowed. 3. Before, we proceed with this matter, it may be appropriate to refer to some basic facts as may be relevant for deciding in this petition. A trial is going on against the petitioner and another accused (proforma respondent no. 2) in connection with the charge for committing offence under Section 366-A read with 34 IPC and Section 6 of POCSO Act. After the framing of charge against the accused including the petitioner, a supplementary charge sheet was also submitted. The trial commenced thereafter and the Prosecution examined as many as 14Prosecution witnesses by 28th October, 2016. Thereafter, on 03.02.2017, an application was filed by the Public Prosecutor under Section 311 Cr.P.C., 1973 praying for allowing to examine one witness namely, Loitongbam Bilashini Chanu, Scientific Officer, Mobile Forensic Unit, Forensic Science Laboratory, Manipur, Pangei stating that due to bonafide mistake, the IO of the case had failed to mention one important witness, the above named person, who had collected important exhibits during the time of investigation of the case. The petitioner filed objection to the said application contending that the name of the aforesaid witness was never mentioned by the I.O. of the case in the Charge-sheet as well as in her evidence. The involvement of the witness was also never mentioned in the case. It was further stated that granting this prayer would amount to allowing the Prosecution to fill up its lacuna which would cause prejudice to the accused. The application was heard and disposed of by the impugned order dated 29.04.2017. The relevant portion of the impugned order is reproduced as follows:- "The prosecution has examined almost all the witnesses and from the Charge sheet and exhibited documents, it shows that one Maruti Alto Car being Registration No. MN01S/1715 belonging to Mrs. Awenshi Sereneh was involved and the said vehicle was seized during the course of investigation. The relevant portion of the impugned order is reproduced as follows:- "The prosecution has examined almost all the witnesses and from the Charge sheet and exhibited documents, it shows that one Maruti Alto Car being Registration No. MN01S/1715 belonging to Mrs. Awenshi Sereneh was involved and the said vehicle was seized during the course of investigation. The I.O. of the case who was examined as P.W. No. 13 has deposed that she had taken the said vehicle to FSL, Pangei and seized 16 nos. of articles from the involved vehicle with the assistance of the Forensic experts. The I.O. of the case seized the said 16 nos. of articles by preparing a seizure memo which is exhibited as Ext. P- 20 and in the said seizure memo, the I.O. of the case also mentioned that she had seized the said articles with the assistance of the Forensic Expert team. Nevertheless, the I.O. in her charge sheet did not reflect the name of the expert in the witness column. However, it is settled principle of law that the Court has ample power to examine any witness even if his name is not mention in the list of the witnesses of the charge sheet if the court has satisfied that the examination of the said witness is essential for just decision of the case provided it should not be fill up the lacuna of the prosecution. The prosecution just want to examine the one of the expert officer of FSL, Pangei who assisted the I.O. in the recovery of 16 nos. of articles from the said Alto car. Since the recovery of 16 nos. of articles and seizing of the same are in the record as per the statements of the I.O. [P.W. No. 13] as well as Ext. P- 20, it is not a new fact to the accused persons and therefore, no injury will cause to the accused persons in examining the person who assisted the I.O. of the case in collecting the said seized articles. More so, examining of the said expert cannot be said that it is for fill-up the lacuna of the prosecution case. Resultantly, the prayer of the prosecution for examining one witness, namely, Loitongbam Bilashni Chanu, Scientific Officer, FSL, Pangei, Manipur is allowed." 4. Ms. More so, examining of the said expert cannot be said that it is for fill-up the lacuna of the prosecution case. Resultantly, the prayer of the prosecution for examining one witness, namely, Loitongbam Bilashni Chanu, Scientific Officer, FSL, Pangei, Manipur is allowed." 4. Ms. Neeru, learned counsel for the petitioner submits that the aforesaid impugned order suffers from various illegalities and if the aforesaid prayer of the Prosecution is allowed, it would mean allowing the Prosecution to pluck the loopholes in the prosecution case. Ms. Neeru, learned counsel for the petitioner has also submitted that nothing has been mentioned in the application how the evidence of the aforesaid witness would be necessary for the just determination of the case. Ms. Neeru further submits that the aforesaid witness was neither included in the list of witnesses in the original charge sheet nor in the supplementary Charge-sheet. It has been further submitted by Ms. Neeru by drawing attention of this Court to the deposition of the I.O. of the case, PW No. 13, that she had stated that on 16/1/2014, she had taken the vehicle involved in the crime to FSL, Pangei and she had seized a number of articles from the said vehicle with the assistance of the forensic expert team. Ms. Neeru, learned counsel submits that the aforesaid PW No. 13 had prepared a seizure memo for many articles and obtained the signatures of the witnesses. However, nowhere, the I.O. has stated the involvement of the aforesaid witness, Loitongbam Bilashini Devi. Therefore, the Prosecution has not explained properly the role played by the said witness to be examined. Ms. Neeru further submits that it was never mentioned in the application dated 3rd Feb. 2017 as to the source of information by which it can be stated that the said Loitongbam Bilashini Devi was involved in collection of any exhibit. Accordingly, Ms. Neeru, learned counsel for the petitioner has submitted that the provisions of section 311 Cr.P.C., 1973 has been invoked not for any legitimate purpose but merely to fill the lacuna of the Prosecution. In support of her submission Ms. Accordingly, Ms. Neeru, learned counsel for the petitioner has submitted that the provisions of section 311 Cr.P.C., 1973 has been invoked not for any legitimate purpose but merely to fill the lacuna of the Prosecution. In support of her submission Ms. Neeru has referred to the decision of the Hon'ble Supreme Court in Rajaram Prasad Yadav v. State of Bihar, AIR 2013 SC 3081 , wherein the Hon'ble Supreme Court after examining the scope of provision of Section 311 Cr.P.C., 1973 formulated the principles to be kept in mind by the Court while dealing with Section 311. The aforesaid principles laid down have been mentioned in para 23 of the aforesaid decision Rajaram Prasad Yadav (supra) which are reproduced here in below:- 23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C., 1973 read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: (a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? (b) The exercise of the widest discretionary power under Section 311 Cr.P.C., 1973 should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. (c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. (d) The exercise of power under Section 311 Cr.P.C., 1973 should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. (e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. (f) The wide discretionary power should be exercised judiciously and not arbitrarily. (f) The wide discretionary power should be exercised judiciously and not arbitrarily. (g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. (h) The object of Section 311 Cr.P.C., 1973 simultaneously imposes a duty on the Court to determine the truth and to render a just decision. (i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. (j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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. (k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. (l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. (m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. (n) The power under Section 311 Cr.P.C., 1973 must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. (n) The power under Section 311 Cr.P.C., 1973 must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. 5. Relying on the aforesaid principles, Ms. Neeru, learned counsel for the petitioner has submitted that in the instant case, the learned Special Judge has not exercised the discretion properly. Though the learned Special Judge had stated that the Court has ample power to examine any witness even if his name is not mentioned in the list of witnesses, the Court can do so only if it is essential for the just decision of the case. It has been contended by Ms. Neeru that it has not been stated how the examination of the said witness will be essential for the just decision of the case. Further Ms. Neeru, learned counsel for the petitioner has submitted that it has been reiterated by the Court that such power under Section 311 Cr.P.C., 1973 could not be invoked for filling any lacuna in a prosecution case. Accordingly, it has been submitted by Neeru that the impugned order passed by the learned Special Judge (POCSO) is liable to be interfered with as it was passed without proper application of mind and which was made to fill the lacuna in the prosecution case. 6. Mr. Samarjeet, learned additional PP, however has vehemently objected to such submission on the part of the petitioner by contending that the impugned order does not suffer from any illegality so as to warrant interference by this Court. Mr. Samarjeet by drawing attention of this Court to the deposition of the I.O. which has also been referred to by learned counsel for the petitioner, submits that it has been clearly mentioned in the deposition of the I.O. of the case that he had seized a number of articles from the vehicle with the assistance of a forensic expert team. Samarjeet by drawing attention of this Court to the deposition of the I.O. which has also been referred to by learned counsel for the petitioner, submits that it has been clearly mentioned in the deposition of the I.O. of the case that he had seized a number of articles from the vehicle with the assistance of a forensic expert team. Though the IO had not mentioned the names of the persons consisting the forensic expert team in her deposition, the name of the said witness was clearly mentioned in the application itself. In the application, it has been mentioned that through bonafide mistake, the I.O. failed to mention one important witness, namely Loitongbam Bilashsini Chanu, Scientific Officer, Manipur FSL who collected important exhibits during the time of investigation of the case. Therefore, if one reads the deposition of the IO with the application, it becomes clear that the aforesaid witness Loitong bam Bilashini Chanu was one of the members of the aforesaid forensic expert team with whose help certain articles were recovered from the vehicle by the Investigating Officer. Mr. Samarjeet, learned Additional PP, further submits that since it was a mistake on the part of the IO not to include the name of the aforesaid witness, the application was made subsequently on 3rd Feb, 2017 which is permissible in law. In this regard Mr. Samarjeet, learned Additional PP has relied on the decision of the Hon'ble Supreme Court in Himanshu Singh Sabharwal v. State of M.P and ors. reported in 2008 (3) SCC 602 in which it has been held that the Court in a criminal case cannot be a mute spectator and cannot remain a silent observer vis-a-vis parties as the criminal trial is essentially for the purpose of arriving at a just decision after appreciating the evidences which are produced before the Court. However, if the Court feels that there has been certain shortcoming on the part of the Prosecution, for a just determination of the case, the Court should not remain helpless. In fact, in order to enable the Court to play a more active role in the ascertainment of truth, such provision as Section 311 Cr.P.C., 1973 and Section 165 of the Evidence Act have been incorporated. Accordingly, Mr. Samarjeet has referred to the following paragraphs in the aforesaid judgment which read as follows :- "32. In fact, in order to enable the Court to play a more active role in the ascertainment of truth, such provision as Section 311 Cr.P.C., 1973 and Section 165 of the Evidence Act have been incorporated. Accordingly, Mr. Samarjeet has referred to the following paragraphs in the aforesaid judgment which read as follows :- "32. Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Liver Wendell Holmes described the process: It is the merit of the common law that it decides the case first and determines the principle afterwards... It is only after a series of determination on the same subject-matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step." 33........................................................................... 34............................................................................ 35. This Court has often emphasized that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the 'majesty of the law'. Interest of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. 36........................................................................... 37........................................................................ 38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on a issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny. 39........................................................................ 40..................................................................... 41......................................................................... 42....................................................................... 43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude or total aloofness. 7. Further, it has been submitted that the present case is not to fill any lacuna in the prosecution case but to bring out all the relevant evidences before the Court so that the Court can arrive at a just decision. 8. Heard learned counsel for the parties and also considered the materials on record. 9. The prime function of the Court is to ascertain the truth and arrive at the just decision so that justice is meted out to the victim by punishing the perpetrator of the crime and justice is meted out to the accused so that no innocent is falsely convicted and also justice is meted out to the society so that society would note that if it does not pay to commit any crime and anybody who commits a crime has to pay. It is for the ascertainment of the truth that the detail procedures have been laid down. For criminal proceedings, detailed proceedings have been laid down in the Code of Criminal Procedure. Section 311 Cr.P.C., 1973 is one such provision which enables the Court to discharge its function without any fetter in the attempt to discover the truth. That is why Section 311 Cr.P.C., 1973 has been couched in a very broad term. It shows that the Court at any stage of the enquiry, trial or other proceeding under the Code can summon any person as a witness or examine any person though not summoned as a witness or recall and re-examine any person already examined if his evidence appears to the Court to be essential to the just decision of the case. It shows that the Court at any stage of the enquiry, trial or other proceeding under the Code can summon any person as a witness or examine any person though not summoned as a witness or recall and re-examine any person already examined if his evidence appears to the Court to be essential to the just decision of the case. A close examination of the provision under Section 311 Cr.P.C., 1973 therefore, indicates that a power has been conferred on the Court to summon witness without any restraint so long as it is for the purpose of arriving at the just decision of the case. However this power is circumscribed only by judicially evolved principles as has been highlighted in the decision of Rajaram Prasad Yadav (supra), which has also been relied on by the learned counsel for the petitioner. Some of the principles which have been laid down in the aforesaid case of Rajaram Prasad Yadav are that if the evidence of any witness appears for the just decision of the case, the Court can summon and examine any such person and the power under Section 311 Cr.P.C., 1973 should be resorted to with the object of finding the truth or for obtaining proper proof of such facts which will lead to just decision of the case. And of course such a power cannot be used for filling any lacuna in the prosecution case. (9) Ms. Neeru, learned counsel for the petitioner has strenuously argued that the present application has been filed by the prosecution for filling the lacuna in the prosecution case. In that context it may be necessary to understand the meaning of the expression of "filling the lacuna." Without going much deeper on this issue, it will suffice to say that the issue of filling the lacuna by the Prosecution will arise after if an attempt is made to make up the weakness in the Prosecution case after the Prosecution has concluded the case and the defence has also concluded examining its witnesses, if any, and where the defence has pointed out certain weakness in the case of the Prosecution which could be fatal to the Prosecution case. If after such defect had been pointed by the defence, an application is filed by the Prosecution to make up such shortcomings, by way of producing any evidence or witness, the defence can object to such a request of the Prosecution to produce any evidence or examine a witness to be done for the purpose of filling up a lacuna in the Prosecution Case. However, in the present case, such a situation has not arisen. As mentioned above, the Prosecution has not yet closed its case. The Prosecution were still examining their witnesses. The prosecution has yet not concluded examination of witnesses. The defence has also not examined any witnesses. In other words, the defence has not put out their case to meet the case of the Prosecution and has not pointed out the lapses, if any, of the Prosecution. Therefore, since the defence has not disclosed its case before the Court and pointed out any loophole, it cannot be said that this application has been filed to fill any lacuna in the case of the Prosecution. Therefore, this Court is not willing to accept the plea of the petitioner that the application has been filed merely to fill the lacuna of the Prosecution. 10. That takes us to the next stage, as to whether examination of the said witness will be essential for just determination of the case or not. As mentioned above, the case relates to sexual assault of a minor girl in connection with which certain incrimination articles were recovered from a vehicle which was involved in the crime. It has been also mentioned by the IO of the case that the IO had recovered certain articles from the vehicle with the help of a team of forensic expert. The recovery of such articles from the vehicle needs to be proved as part of the criminal transactions. In that connection, if any member of the forensic team is examined as a witnesses who had helped in recovering the article from the car, it can be stated such an action would be for just determination of the case, and it cannot be considered to be for the purpose of filling any lacuna of the Prosecution. In that connection, if any member of the forensic team is examined as a witnesses who had helped in recovering the article from the car, it can be stated such an action would be for just determination of the case, and it cannot be considered to be for the purpose of filling any lacuna of the Prosecution. As also observed by the Hon'ble Supreme Court that there may be shortcomings in the functioning of the Prosecution, which has been highlighted in the decision in Himanshu Singh Sabharwal Case (Supra), where the Court may not remain a mute spectator. In the present case, though the IO could have included the name of the present witness sought to be examined in the charge sheet, non mentioning of her name cannot be said to be fatal. The IO of had clearly indicated in her deposition that certain incriminating articles were recovered from the car with the help of the team of forensic experts. Further, in the application filed before the Trial Court on 3.2.2017, it was specifically mentioned that she was one of the members of the forensic team who had helped the IO in recovering articles from the car during the investigation of the case. One can also observe that what the IO had deposed and what had been stated in the application had been taken into consideration by the learned Special Judge (POCSO) at the time of passing of the impugned order. It has been stated in very clear terms in the impugned order that the Prosecution wanted to examine one of the expert officers of FSL, Pangei who had assisted the IO in the recovering of articles from the said Alto car. Therefore, it cannot be said that the aforesaid witness who is sought to be examined is a total stranger to the investigation of the case and has no role to play in the investigation of the case. She is one of the witnesses who would be important in ascertainment of the facts of the case relating to seizure of important material evidence from the case. The seizure of articles from the vehicle had been already brought on record. She is one of the witnesses who would be important in ascertainment of the facts of the case relating to seizure of important material evidence from the case. The seizure of articles from the vehicle had been already brought on record. The fact that the seizure was made with the help of a team of forensic experts had been also mentioned in the deposition of the I.O. The only new fact is that the proposed witness was one of the members of the said forensic team. Therefore, this "new" fact is not any undisclosed fact which would cause any surprise to the defence. Further, it cannot be said by any stretch of imagination that by examining the aforesaid witness the defence would be prejudice. The defence would be afforded all opportunity to cross-examine the witness if produced. Therefore, it cannot be stated that the examination of such witnesses would cause any prejudice to the defence. It is one of the principle shigh lighted in the aforesaid case of Rajaram Prashad that the Court should be conscious of the right of the accused and the Court should afford opportunity to the accused in a fairest manner possibly. In the present case, since the defence would have every opportunity to cross-examine the said witnesses, it cannot be said that any prejudice would be caused to the defence. In view of the above observations, this Court is of the opinion that the present petition is misplaced and is accordingly, rejected as without merit. 11. It has been noted from the records that the trial has been held up since 15.5.2017 because of the pendency of this petition and in view of the latest mandate come from the Apex Court to make attempt to conclude such trial involving sexual harassment to the minor under POCSO Act at the earliest, the present petition is disposed of with the direction to the Trial Court to conclude the trial by examining the aforesaid witness namely Loitongbam Bilashini Chanu, Scientific Officer, Mobile Forensic Unit, Forensic Science Laboratory, Manipur, Pangei at the earliest and conclude the trial as expeditiously as possible preferably within a period of 6 months. 12. A copy of this order be furnished immediately to the Court of POCSO Special Judge, Manipur, Imphal West.