Whether by exercising powers under Section 311 of the Code of Criminal Procedure, 1973 (for short “Cr. P. C.”) lacunae in prosecution case can be permitted to be filled up by ordering re-examination of the prosecution witnesses, after long lapse of time when arguments of the case from both the sides i.e. the prosecution as also the defence has already been concluded, is the primal issue to be decided in the present proceeding?

2. The criminal case, in which the petitioners stand charged under Sections 302/34 and 394 I.P.C. as also under Section 27 Arms Act, has a chequered history. In order to demonstrate that exercise of powers under Section 311 Cr. P.C. by the learned trial court was wholly unjustified, learned counsel appearing on behalf of the petitioners has produced the certified copy of the entire order-sheet of the learned trial court from the stage of receiving commitment order on 27.08.2007 till the order dated 24.04.2012 during which trial of the petitioners commenced, charges were framed against them, 13 witnesses were examined on behalf of the prosecution, material documents were exhibited and arguments from the prosecution side as also the defence side commenced and concluded, yet the trial of the petitioners has remained pending and has not been concluded till date without valid justification, though the petitioner no.1 is all along in judicial custody since 14.02.2007 i.e. for more than five and half years. The aforesaid order sheet has been taken on record and there is no objection either by the learned Additional Public Prosecutor appearing on behalf of the State or by learned counsel appearing on behalf of the informant, who appeared in this matter suo motu and was heard in view of the importance of the issues as also for ends of justice.

3. In order to appreciate the issues involved in the present case and in order to answer the question formulated and posed at the very outset, certain factual matrix of the criminal case, in brief, are required to be noticed, which are detailed in the following paragraphs.

4. P.W. 6 Bibhash Kumar Choudhary gave his fardbeyan to the police on 23.01.2007 at about 6.30 P.M. at Primary Health Centre, Balia, on the basis of which Balia P.S. Case No. 12 of 2007 dated 23.01.2007 for offences under Sections 394 and 302 of the Indian Penal Code as also under Section 27 of the Arms Act was instituted against three unknown miscreants. Admittedly, the petitioners are not named as accused in the FIR vide Annexure-1. During the course of investigation the petitioners were apprehended by the police and were remanded to judicial custody by the order of the court. The petitioner no.1 was put on Test Identification Parade on 12.03.2007, where the informant (PW 6) Bibhas Kumar Choudhary identified him as a member of the mob, allegedly responsible for the commission of the crime in question. Similarly, petitioner no.2 also was apprehended by the police and was put on T.I. Parade during course of which, he was also identified by a witness. On close of investigation, charge-sheet was submitted against the accused- petitioners and after taking cognizance, case was committed to the court of Sessions. Accordingly, record of the case was received by the learned Sessions Judge, Begusarai on 27.08.2007, who transferred the case to the court of learned Fast Track Court-I, Begusarai for trial and disposal.

5. It appears that the charge under Sections 302/34, 394 of the Indian Penal Code and under Section 27 Arms Act was framed against the petitioner no.1 on 25.09.2007. Subsequently, similar charge was framed against petitioner no.2 also and trial of both the petitioners was amalgamated on 13.02.2008 and proceeded together. On 04.03.2008 P.Ws. 1 and 2 were examined, cross-examined and were discharged. Similarly P.Ws. 3 and 4 were examined, cross-examined and were discharged on 12.03.2008 and 22.04.2008 respectively.

6. In the present case, P.W.5 Reena Kumari and P.W. 6 Bibhash Kumar Choudhary (i