IMPORTANT POINT
Once the trial in criminal case concluded and case was fixed for judgment court could not allow application under Section 311 CrPC.

JUDGMENT

B.D. Rathi, J.—Heard.

This petition under Section 482 of the Code of Criminal Procedure has been preferred invoking the inherent powers of the Court for the following relief:

“By allowing the present petition, order passed by the Revisional Court dated 29.11.2014 in Criminal Revision 143/2014 and the order passed, by the trial court dated 5.11.2014 in Criminal Case No.1728/2007be quashed.”

2. Facts of the case, in brief, are that petitioners are facing trial in connection with Crime No.272/2007 for the offence punishable under Sections 323, 294, 325 and 308/34 of IPC. During .the course of trial, after examination of witness Dr. Anoop Verma on 8.10.2013 and other witnesses, the case of the prosecution was closed. The matter was fixed for defence evidence and, then the case was fixed for final arguments on 4.6.2014. On 4.6.2014, final arguments were heard and the case was fixed for delivery of the judgment on 18.6.2014. Thereafter, case was again reopened because of alteration in-charges and fixed’ for final arguments on 9.7.2014. Then, the final arguments were heard and the case was posted for judgment on 19.7.2014. On that date, an application under Section 311 of Cr.P.C. was filed by the prosecution for recalling Dr. Anoop Verma (PW10) for re- examination just to clarify whether bone of left leg was fractured or-of right leg. Previously, in the evidence of Dr. Anoop Verma, it was deposed that the fracture was found in the left leg but as per the X-ray plate A2 right leg has been found fractured.

3. Having heard counsel for the parties, application was allowed by the trial court on 5.11.2014 by saying that just to observe clarity and arrive at a right conclusion, explanation from Dr. Anoop Verma is required. This order was challenged in revision but the same was dismissed on the ground that the order passed under Section 311 of Cr.P.C. is an interlocutory order and ‘no revision is maintainable under Section 397(2).

4. It is submitted by Shri Bansal, learned counsel for the petitioners that because the case was already fixed for final judgment, therefore, it cannot be said that enquiry or trial is pending and hence on the date fixed for judgment such kind of application preferred under Section 311 of Cr.P.C. could not have been entertained by the learned trial court. Apart that it is a settled law that to fill up the lacuna, witnesses should not be called by invoking powers under Section 311 of Cr.P.C. In support of such contention, attention of the Court has been drawn towards the judgment rendered by the Hon’ble Supreme Court in the matter of Cheeku Singh v. State of Rajasthan, 1998 Cri L.J. 950.

5. Prayer made by the, petitioners learned counsel has been opposed on the ground that revisional Court has rightly passed the order in accordance with law. Impugned order of the trial court was interlocutory in-nature and therefore it was rightly held by the revisional court that, the revision was not maintainable. Learned Panel Lawyer further submitted that it was not the case where the lacuna had to be filled up. In fact doctor has already been examined but for one or another reason, or by typing mistake fact of fracture was deposed contrary to the X-ray plate, therefore, in’ order to observe clarity and above at a right conclusion the order was rightly passed by trial court by allowing the application preferred by the prosecution under Section, 3l1 of, Cr.P.C. to call Dr. Anoop, Verma (PW10) for reexamination. Petition being misconceived is liable to be dismissed.

6. Having regard to the arguments advanced by the learned counsel for the parties, entire, material has been perused.

7. Admittedly, application under Section 311 of Cr.P.C. was filed on the date when, the case was fixed for judgment. In this regard, it is worthwhile to quote provisions of Sections 311 and 353(1) of Cr.P.C. which are as under:

Section 311. The power to summon material witness, or examine person present:

“Any Court may, at any stage of any i