The power under Section 311 of Cr.P.C. must be exercised judiciously and not arbitrarily, and should only be invoked to receive evidence essential for the just decision of the case.

1. Rule. Rule made returnable forthwith. With the consent of parties matter is taken up for hearing.

2. The petitioner herein who is an accused in C.C. No.107 of 2005, has challenged-(i) the order dated 14.8.2015 allowing the application at Exhibit 142 filed by the prosecution for recall of the Investigating Officer for further examination and (ii) the order dated 14.8.2015 allowing Exhibit 143, filed by the prosecution, and thereby directing the Investigating Officer to record the statement of Dyaneshwar Khutwad, and further permitting the prosecution to examine the said witness.

3. Mr. Prakash Naik, the learned Sr. Counsel for the petitioner has submitted that the prosecution has sought to examine the Investigating Officer for adducing evidence in respect of the photographs produced by PW9 even though such photographs have not been referred to by any witness other than PW9. Learned Sr.Counsel Shri Naik submits that this is nothing but an attempt to fill up the lacuna.

4. Learned Sr. Counsel Shri Naik has further submitted that in the course of the evidence, PW9 had for the first time deposed that one Dnyaneshwar Khutwad was present at the time of the incident. Based on the said statement prosecution filed an application at Exhibit 143 seeking leave to examine said Dnyaneshwar Khutwad as a witness. Learned Sr. Counsel Shri Naik submits that neither PW9 nor the other witnesses had made reference to Dnyaneshwar Khutwad in their statements under Section 161 of Cr.P.C. He has submitted that based on the improvised version of PW9, the learned Magistrate has not only allowed the prosecution to examine the witness Dnyaneshwar Khutwad, but has also directed the Investigating Officer to record his statement under Section 161 of Cr.P.C. The impugned order, according to learned Sr. Counsel Shri Naik, is on the face of it not sustainable.

5. Mrs. Newton, the learned APP and Shri Shekhar, the Counsel for the intervenor have submitted that the witness PW9 Pravin Gedam, is an IAS Officer who was the victim of the incident. They have submitted that the evidence of PW9 amply proves the presence of Dnyaneshwar Khutwad at the place of the incident and in the light of the said statement the prosecution had made an application under Section 311 of Cr.P.C. to examine said Dnyaneshwar Khutwad as a prosecution witness. The learned APP and the learned Counsel for the intervenor have submitted that Section 311 of Cr.P.C. confers vide powers in the court in the matter of examination or re-examination of a witness in order to arrive at a just decision. The learned APP contends that the evidence of PW9 proves that the witness sought to be examined had witnessed the incident and therefore his evidence is relevant to arrive at the just decision.

6. Having heard learned Sr. Counsel Shri Naik for the petitioner, as well as the learned APP for the State, and the learned Counsel for the intervenor, I shall now bestow my consideration to the issue involved. Both the impugned orders have been passed under Section 311 of Cr.P.C. It will therefore be advantageous to refer to and consider the scope of Section 311 of Cr.P.C. which reads 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.”

7. A plain reading of Section 311 would show that this section vests powers in the court to summon any person as witness or to recall and reexamine any witness at any stage of the inquiry, trial or other proceedings under the code, provided such evidence is essential for just decision of the case.

8. In Natasha Singh Vs. CBI (State) 2013 (5) SSC 741 the