Judgment : ANAND SHARMA, J. 1. By way of filing this criminal misc. petition, the petitioner has challenged order dated 10.01.2019 passed by the Court of Special Judge, Dacoity Affected Area, Dholpur (hereinafter to be referred as 'the trial court') in Sessions Case No. 57/2018 (CIS No. 48/2017) titled as State Vs. Bheemsen & Others, whereby, application under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as 'Cr.P.C.') filed by the prosecution has been allowed and direction was issued by the trial court to summon witness, namely, Dr. Brajmohan Mangal for examination. 2. It is stated that pursuant to F.I.R. No. 96/2015 lodged on 28.04.2005 against the petitioners for alleged offences punishable under Sections 143 , 323, 341 and 452 of the Indian Penal Code (hereinafter to be referred as ' IPC '), after investigation, charge sheet was filed against them for offences punishable under Sections 323 , 341, 325, 452, 307 and 34 . Charges were framed by the trial court against against the petitioners and thereafter, statements of prosecution witnesses were recorded. After completion of evidence of prosecution witnesses, statements of the petitioners under Section 313 Cr.P.C. were also recorded by the trial court. Thereafter, the defence also completed its evidence. It is further submitted that after completion of entire evidence, the matter was fixed for final arguments on 06.12.2018 and on that day, arguments from both the sides were heard by the trial court and time was granted to both the sides for submitting written arguments. The case was fixed for further orders on 18.12.2018. 3. On 18.12.2018, Public Prosecutor submitted an application under Section 311 Cr.P.C. with the contention that opinion with regard to nature and extent of injuries was given by Dr. Brajmohan Mangal, however, his name could not be mentioned in the list of witnesses along with charge sheet. It was submitted that in order to properly adjudicate the trial, examination of Dr. Brajmohan Mangal along with X-Ray Report and Register would be necessary. Hence, a request was made to summon Dr. Brajmohan Mangal as prosecution witness. 4. Brajmohan Mangal, however, his name could not be mentioned in the list of witnesses along with charge sheet. It was submitted that in order to properly adjudicate the trial, examination of Dr. Brajmohan Mangal along with X-Ray Report and Register would be necessary. Hence, a request was made to summon Dr. Brajmohan Mangal as prosecution witness. 4. Such application was seriously opposed by the defence by contending that the application is nothing, but to derail and delay the trial and has been filed at the stage when virtually trial of the case has been completed and the judgment is to be delivered after taking on record the written arguments from both the sides. Thus, the application has been filed by the prosecution maliciously, in order to fill up the gaps in the prosecution evidence. Hence, the application filed by the prosecution was liable to be dismissed. 5. After hearing both the sides, vide orer dated 10.01.2019, application under Section 311 Cr.P.C. filed by the prosecution was allowed by the trial court and summons were directed to be issued to witness, Dr. Brajmohan Mangal to appear before the trial court on 02.02.2019 for his examination along with X-Ray Report and Register. 6. Learned counsel for the petitioners as well as learned Public Prosecutor repeated their arguments as put forward by them before the trial court. Learned Public Prosecutor has relied upon the judgment of the Hon'ble Supreme Court in the case of K.P. Tamilmaran Vs. State by Deputy Superintendent of Police , 2025 SCC OnLine SC 958, wherein it was held that the power under Section 311 Cr.P.C. is discretionary and can also be exercised by the Court suo motu or on an application filed by either side where the court is of the view that examination of witness is necessary for just decision in the trial. 7. I have heard learned counsel for the parties and carefully perused the material on record. 8. As the controversy involved in the present case revolves around Section 311 Cr.P.C., the same is reproduced as under: " 311. Power to summon material witness, or examine person present. 7. I have heard learned counsel for the parties and carefully perused the material on record. 8. As the controversy involved in the present case revolves around Section 311 Cr.P.C., the same 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. Bare perusal of the aforesaid provision would make it clear that power to summon or recall any witness is discretionary in nature and the trial court may summon or call any witness at any stage of trial. However, such power cannot be said to be unbridled and unfettered. The power can be exercised with caution and only in those cases, where the trial could not have been concluded without examination/re-examination of the witness sought to be summoned. 10. Simultaneously, trial court must also appreciate the fundamental principle that during trial, equal opportunity is to be afforded to the prosecution as well as defence. However, such opportunity does not mean that any of the party is at convenience to mould the trial proceedings in the manner it wishes. 11. In the present case, it is undisputed that after framing of the charges, statements of the prosecution witnesses were recorded and the prosecution completed its evidence. Thereafter, the trial court examined the accused-petitioners under Section 313 Cr.P.C., which was followed by defence evidence. 12. It has also come on record that thereafter, even oral arguments from both the sides have been heard by the trial court and opportunity was granted to both the sides for submitting written arguments. Thus, only judgment was to be delivered by the trial court. Hence, technically, it can be said that both the sides have already discharged their duties and fulfilled their obligations with regard to submitting their evidence and making submissions on the basis of the evidence. At this stage, trial court was only required to perform its function with regard to dictating and pronouncing the judgment. Hence, technically, it can be said that both the sides have already discharged their duties and fulfilled their obligations with regard to submitting their evidence and making submissions on the basis of the evidence. At this stage, trial court was only required to perform its function with regard to dictating and pronouncing the judgment. In the light of aforesaid facts, it can safely be gathered that application under Section 311 Cr.P.C. filed by the prosecution was an afterthought and it can also be presumed that such afterthought must have prompted in the mind of the prosecution only with a view to fill up the lacuna, which might have been pointed by the defence at the time of tendering its oral arguments. 13. It is also significant to note that present is not a case where any witness, examined earlier, was recalled for the purpose of some clarification and in the present case, a witness, whose name was admittedly not there in the charge sheet as witness, was summoned for the first time and that too, after technical conclusion of the trial. Thus, discretionary power under Section 311 Cr.P.C. vested with the trial court cannot be allowed to be exercised so as to cause miscarriage of justice to the defence as well as to fill up the lacuna in prosecution evidence. 14. In the case of Natasha Singh Vs. Central Bureau of Investigation (State), (2013) 5 SCC 741 , the Hon'ble Supreme Court held that discretionary power under Section 311 Cr.P.C. has to be invoked with great caution and circumspection. The scope of aforesaid provision is to determine the truth for a just decision and not to fill up the lacuna in evidence. Para no. 15 of the judgment, being relevant, is reproduced as under: " 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under CrPC 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 great caution and circumspection. The very use of words such as “any court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." 15. In the case of Surendra Kumar & Others Vs. State of Rajasthan (S.B. Criminal Misc. Petition No. 234/2001 decided on 09.05.2001) , Co-ordinate Bench of this Court at Principal Seat, Jodhpur, while dealing with the matter with regard to provisions of Section 311 Cr.P.C., held that application under Cr.P.C. cannot be filed at the fag end of the trial where prosecution witnesses had already been examined. It was also held that such application was filed in that case to delay the proceedings. Hence, application under Cr.P.C in that case was rejected by the Co-ordinate Bench of this Court. 16. It was also held that such application was filed in that case to delay the proceedings. Hence, application under Cr.P.C in that case was rejected by the Co-ordinate Bench of this Court. 16. This Court is in full agreement with the views taken by the Co-ordinate Bench of this Court at Principal Seat, Jodhpur in the case of Surendra Kumar & Others (supra) and in the facts and circumstances of the present case, it is observed that the application filed by the prosecution was not bona fide and the same was filed with a view to fill up the lacuna as well as delay the proceedings before the trial court. Hence, application under Section 311 Cr.P.C. filed by the prosecution could not have been allowed by the trial court. 17. So far as the judgment of the Hon'ble Supreme Court in the case of K.P. Tamilmaran (supra) , relied upon by learned Public Prosecutor, is concerned, there is no quarrel about the proposition of law laid down by the Hon'ble Supreme Court, however, in view of the facts and circumstances of the present case, the above referred decision is of no help to learned Public Prosecutor. 18. In the light of above discussion, order dated 10.01.2019 passed by the Court of Special Judge, Dacoity Affected Area, Dholpur (hereinafter to be referred as 'the trial court') in Sessions Case No. 57/2018 (CIS No. 48/2017) titled as State Vs. Bheemsen & Others is, hereby, quashed and set aside. Application under Section 311 Cr.P.C. filed by the prosecution is dismissed and the trial court is directed to proceed further in accordance with law. 19. Criminal misc. petition stands allowed accordingly. 20. Pending applications, if any, stand disposed of.