The central legal point established in the judgment is that the power under Section 311 of Cr.P.C. should be used judiciously and not to fill up lacunae in the prosecution case, and subordinate Courts do not have jurisdiction to recall earlier orders.

JUDGMENT :

Heard learned counsel for the petitioners and learned A.P.P. for the State as well as learned counsel for the Opposite Party No.2.

2. The present quashing application is being filed for quashing the order dated 02.03.2020 passed by Sri Rakesh Kumar, learned J.M.-1st, Class, Sitamarhi in connection with Tr. No. 2006 of 2019 arising out of Sahiyara P.S. Case No.- 80 of 2010 lodged under Sections 447, 341, 323, 337, 504 and 34 of the I.P.C. by which Court has allowed the application filed by prosecution under Section 311 of Cr.P.C.

3. Learned counsel for the petitioners submit that the present criminal case has been filed in the year 2010 in which charge sheet has been filed on 27.07.2011, cognizance has been taken on 06.08.2012, charge has been framed on 25.02.2013 against the petitioners. Counsel submits that he has annexed the order sheets by which it transpires that after 25.02.2013, series of dates were crossed but prosecution has failed to produce any witness. Counsel submits that after lapse of 6 years and issuance of processes, last date for adducing the evidence was fixed on 28.11.2019 and finally on 07.12.2019, the evidence was closed in this case. On 02.01.2020, the case has been fixed for examination of witnesses and examination of witnesses under Section 313 of Cr.P.C. has completed on 20.01.2020 (Annexure3). Thereafter, an application under Section 311 of Cr.P.C. has been filed by the prosecution to allow the prosecution to examine the prosecution witnesses. The accused persons have opposed the petition filed under Section 311 by the prosecution and finally on 02.03.2020, the application filed by prosecution under Section 311 dated 20.01.2020 was allowed. Against the said order, the accused petitioners have preferred the present quashing application rejecting the said order dated 02.03.2020 passed in G.R. No. 2336 of 2010 (State of Bihar Vs. Ram Babu Singh and Others). Counsel for the petitioners submit that the provisions laid down under Section 311 is very much clear under which Court may at any stage of inquiry, trial or other proceedings under this Court summon any person as a witness for 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case. Counsel for the petitioners submit that there is no such occasion available to the prosecution of the present case as mentioned in Section 311. He put reliance on a judgment in case of Keshav Choudhary and Others Vs. State of Bihar reported in 2000 (3) P.L.J.R. 220 decided on 21.01.2000, in which it has been held that Section 311 gives wide power to the Court to examine recall and reexamine any witness whose evidence is essential for just decision of the case but the jurisdiction conferred under Section 311 Cr.P.C. cannot be used for filling up of lacuna in the prosecution case and it does not give a long root to the prosecution to make it a tool for the harassment of the accused or to be used or abuse in any manner.

4. Para 6 and 7 of the judgment are quoted here:

“It, thus, becomes clear that this provision u/s 311 of the Code has been made for the just decision of the case. A just decision in a case will mean just decision both from the point of view of the prosecution as well as the accused. Section 311 of the Code does not give a long rope to the prosecution to make it a tool for the harassment of the accused to be used or abused in any manner that they like. In the present case it, however, appears that the charge sheet in this case was submitted on 15.06.1993 and thereafter 24.06.1993, 25.06.1993, 26.06.1993 and 28.06.1993 were the dates fixed for the examination of the witnesses. In spite of so many dates not a single witness turned up. By the orders dated 03.02.1994, 11.01.1995 and 07.03.1995 bailable as also non-bailable warrants of arre