ORDER : Petitioners, in these writ petitions, have challenged order dated 12.10.2018 in Spl.C.No.181/2017 passed by XLIX Additional City Civil & Sessions Judge (Special Court for trial of NIA Cases), Bengaluru, allowing an application filed by the National Investigating Agency(NIA) under Section 311 of Cr.P.C. 2. Heard Shri S.Balan, learned advocate for the petitioners and Shri P.Prasanna Kumar, learned advocate for the respondent-NIA. 3. Petitioners are accused No.1 to 4 facing trial for offences punishable under Sections 302, 201, r/w 34 IPC, Sections 3 and 27 of Arms Act and Sections 15,16,17,18 and 20 of Unlawful Activities(Prevention) Act, 1967. 4. Shri S.Balan submitted that examination-in-chief of three prosecution witnesses namely PWs.1, 2 and 3 was completed on 07.06.2018. P.W.1 was cross-examined on 08.06.2018, 28.06.2018, 31.07.2018, 01.08.2018, 14.08.2018 and the cross-examination was completed on 22.09.2018. On the very same day, prosecution filed the instant application to recall P.Ws. 1 to 3 for the purpose of identification of weapon and the motor cycle used by the accused for the offence. 5. Assailing the impugned order, Shri Balan urged following contentions: that Section 127 of the Indian Evidence Act, 1872 (‘Act’ for short) provides for examination, cross-examination and re-examination of a witness. The prosecution had an option to reexamine P.Ws. 1 to 3 and get the weapon and the motor cycle allegedly used by the accused duly identified by the said witnesses in re-examination. However, re-examination has been taken as ‘nil’. This implies that prosecution has waived its right to examine the said witnesses any further; that Section 311 of Cr.P.C. is in two parts. The first part is discretionary in nature and second part is mandatory. It permits recall and re-examination of a witness but does not permit further examination; that the instant application under Section 311 Cr.P.C. is filed only in order to fill up the lacunae in the prosecution case; that though the learned trial Judge has recorded NIA’s contention in paragraph No.12 of the impugned order with regard to its request for permission to show the material object to the witnesses, the same is not borne out on record inasmuch as the order sheet does not disclose the request, if any, made by the NIA; that P.Ws.1 to 3 are not panchanama witnesses. The NIA has enough opportunity to get the material objects marked through the panch witnesses; and that by allowing the application under Section 311 Cr.P.C., the learned Trial Judge has reviewed his order dated 22.09.2018, on which date he has recorded re-examination by the NIA as ‘nil’. 6. Thus in substance, Shri Balan contended that NIA has waived its right to further examine the witnesses and the instant application is filed to fill up the lacunae in the prosecution case. He placed reliance on the following two authorities: (i) (2017) 8 SCC 570 [Sonu alias Amar Vs. State of Haryana] to support his contention that NIA has waived its right to reexamine the witnesses; and (ii) AIR 1991 SC 1346 [Mohanlal Shamji Soni Vs. Union of India (UOI) and Ors.] to support his contention that power under Section 311 Cr.P.C. should not be used to fill up the lacunae left by the prosecution or defence to the disadvantage of the accused. 7. Shri Balan further submitted that the objection raised by the NIA with regard to maintainability of these petitions is untenable. He submitted that in view of Section 21 of the NIA Act, no appeal or revision is maintainable against an interlocutory order. Therefore, the petitioners have rightly filed these petitions under Articles 226, 227 of the Constitution of India and Section 482 Cr.P.C. 8. Shri Prasanna Kumar, opposing the petitions at the outset submitted that the petitioners have filed the instant petitions only under Articles 226 and 227 of the Constitution of India. A petition under Article 226 against the impugned order passed by the learned Trial Judge is not maintainable at all. Even under Article 227 of the Constitution of India, High Court can exercise it’s power of superintendence over all Courts and Tribunals within it’s territorial jurisdiction. Placing reliance on a Constitution Bench judgment of the Supreme Court of India in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and others, AIR 1955 SC 233 , he contended that a Court issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. He urged that trial Court has jurisdiction to consider an application under Section 311 Cr.P.C. and therefore, there is no jurisdictional error. While exercising powers of superintendence, this Court shall not examine the matter as an appellate Court. Therefore these petitions are not maintainable. 9. He urged that trial Court has jurisdiction to consider an application under Section 311 Cr.P.C. and therefore, there is no jurisdictional error. While exercising powers of superintendence, this Court shall not examine the matter as an appellate Court. Therefore these petitions are not maintainable. 9. With regard to other contentions urged by Shri Balan, Shri Prasanna Kumar made following submissions: that the weapon used by the accused was kept in the strong room and the motor cycle which was parked in the court premises was sent back to the prosecuting agency. Thus, both the items were not readily available when the prosecution witnesses were examined. The prosecutor made a specific request to the learned Trial Judge to permit him to show the material objects to prosecution witnesses for identification. The said fact has been rightly recorded by the learned Trial Judge in paragraph No.12 of the impugned order. Thus, there is no waiver on the part of the prosecution; that re-examination is limited only to seek explanation, if any, and to clear ambiguity as is clear from Section 138 of the Act; that a lacuna in prosecution cannot be equated with the fallout of an oversight committed by the Public Prosecutor during the trial; and that scope of Section 311 Cr.P.C. has to be construed liberally. Identification of material objects by eyewitnesses is crucial and the Trial Court has rightly allowed the instant application moved by the prosecution. 10. In substance, he contended that there is no error or illegality in the impugned order and accordingly prayed for dismissal of these petitions. 11. I have carefully considered the submissions of learned advocate for the petitioners and learned advocate for the NIA. 12. In the conspectus of facts of this case, following points arise for consideration of this Court : (i) Whether the petitions are maintainable? (ii) Whether the impugned order requires any interference? 13. Re. point No.(i) Whether the petitions are maintainable? The memoranda of these petitions have been filed invoking Articles 226 and 227 of the Constitution of India, although, Shri Balan made a feeble attempt to point out that Section 482 Cr.P.C. has been mentioned in the index sheet. 14. It is settled that nomenclature under which a petition is filed is not very relevant and does not debar the Court from exercising its jurisdiction which it otherwise possesses. In Pepsi Foods Ltd. and another Vs. 14. It is settled that nomenclature under which a petition is filed is not very relevant and does not debar the Court from exercising its jurisdiction which it otherwise possesses. In Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, (1998) 5 SCC 749 , it is held as follows: “26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.” 15. The impugned order is an interlocutory order passed by a Sessions Court. Section 21 of the NIA Act reads as follows: “21. Appeals. - (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. (2) Every appeal under subsection (1) shall be heard by a Bench of two judges of the High Court and shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.” xxx (emphasis supplied) 16. In view of the language employed in Section 21 of the NIA Act, an appeal is barred against the said order. (3) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court.” xxx (emphasis supplied) 16. In view of the language employed in Section 21 of the NIA Act, an appeal is barred against the said order. The jurisdiction under Article 226 is normally exercised for vindication of either fundamental or statutory rights, whereas jurisdiction under Article 227 is exercised by the High Court for vindication of its position as highest judicial authority in the State [See Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 ] Therefore, these petitions will have to be construed as having been filed under Article 227 of the Constitution of India. 17. In Hari Vishnu Kamath, a constitution bench of the Supreme Court of India has held that while in a certiorari proceeding under Article 226, the High Court can only annul the decision, it can, under Article 227 do that, and also issue further directions in the matter. It is further held therein that the High Court issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right and when the legislature does not chose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case and substitute its own findings. 18. It is no more res integra that High Court exercises power of superintendence over all Courts and Tribunals within its jurisdiction. Hence, the objection raised on behalf of the prosecution that these petitions are not maintainable is untenable and accordingly rejected. Resultantly, it is held that these petitions are maintainable. 19. Point No.(ii) Whether the impugned order requires any interference? With regard to the power under Section 311 Cr.P.C., the Supreme Court of India in P.Sanjeeva Rao Vs. State of Andhra Pradesh, (2012)7 SCC 56 , has held has follows: “19. Resultantly, it is held that these petitions are maintainable. 19. Point No.(ii) Whether the impugned order requires any interference? With regard to the power under Section 311 Cr.P.C., the Supreme Court of India in P.Sanjeeva Rao Vs. State of Andhra Pradesh, (2012)7 SCC 56 , has held has follows: “19. The nature and extend of the power vested in the courts under Section 311 CrPC to recall witnesses was examined by this Court in Hanuman Ram v. State of Rajasthan. This Court held that the object underlying Section 311 was to prevent failure of justice on account of mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. This Court observed: (SCC p.654, para7) “7. …’26. … 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 witness 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. 27. 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 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, enquiries 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.” 20. In State of Haryana Vs. Ram Mehar and others, (2016) 8 SCC 762 , it is held as follows: “32. In UT OF Dadra & Nagar Haveli v. Fatehsinh Mohansinh Chauhan the Court was dealing with an order passed by the High Court whereby it had allowed the revision and set aside the order passed by the learned trial Judge who had exercised the power under Section 311 CrPC to summon certain witnesses. The Court referred to the earlier authorities and ruled that it is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court. Calling a witness or reexamining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filing in a lacuna in the 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. Be it stated, in the said case the Court came to held that summoning of the witness was necessary for just and fair decision of the case and accordingly it allowed the appeal and set aside the order passed by the High Court.” 21. So far as the contention with regard to filling the lacuna is concerned, in Rajendra Prasad Vs. Narcotic Cell, (1999) 6 SCC 110 it is held as follows: “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. 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.” 22. Further with regard to re-summoning of witness, it is held as follows: “12. We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. 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. The steps which the trial court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down or frowned at.” 23. Shri Prasanna Kumar also adverted to the relevant portions of the examination-in-chief of P.Ws.1, 2 and 3 and pointed out that witnesses have spoken about a machete (weapon) and the motor cycle used by the accused. It is settled that lacuna in the prosecution is an inherent weakness or a latent wedge in the matrix of prosecution case. The advantage of the same should normally go to the accused, but an oversight in the management of the prosecution cannot be treated as filling up a lacuna. 24. A combined reading of the deposition of PWs.1 to 3 and paragraph No.12 of the impugned order wherein the learned Trial Judge has recorded that it has been the case of the NIA that oral request was made on 07.06.2018 for permission to show the material objects to the witnesses, as the same were not readily available, leads to an inference that prosecution has not waived its right to show the material object to the witnesses. The circumstance under which the material objects were not shown to the witnesses has been explained by the prosecution. The application in question has been filed on the very day on which cross-examination of P.W.1 was completed. Thus, the case on hand falls within the definition of ‘an over sight’ committed by the Prosecutor during the trial in producing relevant material as held in Rajendra Prasad (supra). 25. It is also settled that High Court while exercising powers under Article 227 of the Constitution shall not exercise appellate jurisdiction. Admittedly, the Trial Court has jurisdiction to entertain an application under Section 311 Cr.P.C. Therefore, there is no jurisdictional error. 26. 25. It is also settled that High Court while exercising powers under Article 227 of the Constitution shall not exercise appellate jurisdiction. Admittedly, the Trial Court has jurisdiction to entertain an application under Section 311 Cr.P.C. Therefore, there is no jurisdictional error. 26. The learned Trial Judge, after perusing the statements of PWs.1 to 3 has opined in paragraph No.15 of the impugned order that it is just and proper to show the weapon and the motor cycle to P.Ws.1 to 3 for identification. He has also recorded that no prejudice would be caused to the accused as ample opportunity would be available to them to cross-examine the witnesses. 27. Further, as held in Rajendra Prasad (supra), power of a 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’. 28. In the light of above discussions, I see no ground to interfere by exercising power under Article 227 of the Constitution of India.