The power under Section 311 Cr.P.C. can be exercised at any stage of the proceeding provided the examination of such person is essential for a just decision of the case, but it cannot be used to fill up lacuna or loopholes in either prosecution or defence case.

1. Heard learned counsel for the petitioners and the learned A.P.P. for the State. Although O.P. No. 2, the complainant, was duly served with notice he has chosen not to appear.

2. Through this application the petitioners have prayed for the quashing of the order dated 21.12.2006 passed by the learned Presiding Judge, Fast Track Court No.-Il, Kaimur at Bhabhua, in Sessions Trial 126 of 2004/190 of 2004, whereby he has been pleased to reopen the prosecution under Section 311 Cr.P.C. and has directed for adducing evidence.

3. The submissions on behalf of the petitioners is that after the conclusion of prosecution evidence, statement under Section 313 Cr.P.C. of the accused persons was recorded, whereafter the defence adduced evidence whereafter arguments were started and both the prosecution as also the defence had completed their respective arguments and the trial was pending for the reply by the prosecution. At this belated stage a petition was filed by the prosecution under Section 311 Cr.P.C. praying therein that the seized materials has been produced by the Forest Department and the R.S. Khatian land in question has also been brought by the Forest Department which are highly essential to be adduced in evidence and as one departmental witness was already in attendance his examination may be held in the interest of justice.

4. As observed by the Supreme Court in the case of Jahira Habibulla V/s. State of Gujarat, reported in 2004(4) SCC 158 it was held that the power under Section 311 Cr.P.C. is exercised and the evidence is examined neither to help the prosecution nor the defence and the object of the section is to enable the Court to arrive at the truth, irrespective of the fact that the prosecution or the defence has failed to adduce some evidence which is necessary for a just and proper disposal of the case and to uphold the truth and if the prosecutor is remiss in someway the court can control the proceedings effectively so that the ultimate object of truth is arrived at. It is also well established that the power under Section 311 Cr.P.C. can be exercised at any stage of the proceeding provided the examination of such person is essential for just decision of the case. However, the same cannot be used to fill up the lacuna or loopholes in either prosecution or defence case.

5. In the instant case the Forest Department had at its disposal an army of staff who could have been of use of the Forest Department in adducing evidence but they kept quite and adduced whatever evidence was available and when the trial virtually reached its end they sought to reopen the matter and adduce additional evidence which the Court allowed.

6. In my opinion the court below has erred in law since the efforts of the prosecution appears to be to fulfill the lacuna and loopholes in the prosecution case which is neither permissible nor warranted.

7. In the result the impugned order being an abuse of the process of the Court is hereby quashed and the application is allowed.