(1.) This revisional application under section 401 read with section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been filed by the accused petitioners assailing the order dated 27.4.05 passed by the learned Additional Sessions Judge (Special), Jalpaiguri in Sessions Case No. 124/99 thereby allowing the prayer of prosecution under section 311 of the Code for date of evidence of medical officer and production of records of Dhupguri P.S. Case No. 69/96.

(2.) Mr. Subir Banerjee, learned advocate for the petitioners submitted that in the aforesaid sessions case after conclusion of evidence and examination of accused persons under section 313 of the Code and after hearing the arguments of both sides, it was pending for judgment. After completion of argument and before delivery of judgment there was a prayer on behalf of prosecution praying for further evidence of medical officer and production of records of Dhupguri P.S. Case No. 69/96. The doctor was examined previously and in his evidence the doctor stated that the post-mortem examination on the body of the deceased Adhanya Mondal was done in connection with Dhupguri P.S. Case No. 69/96. In the post-mortem report which was admitted in evidence and marked as exhibit, the doctor mentioned Dhupguri P.S. Case No. 69/96 and the doctor in his evidence stated the same fact. If the prosecution prayer is allowed at this stage it would amount to fill in lacuna of prosecution evidence. If the prosecution filed the prayer for examination of doctor and production of records of Dhupguri P.S. Case No. 69/96 during stage of recording evidence matter would have been different but, when the case is posted for judgment at such a belated stage prosecution prayer under section 311 of the Code cannot be allowed. The post mortem report now cannot be changed.

(3.) Mr. Banerjee further submitted that the learned Additional Sessions Judge without properly applying judicial mind into the matter allowed the prayer of the prosecution under section 311 of the Code. The accused persons will be seriously prejudiced, if at such a stage the doctor is again examined and the records of aforesaid Dhupguri P.S. Case No. 69/96 are produced in Court. Court must be impartial and should not show any favour either to prosecution or to the defence. The impugned order passed by the learned Additional Sessions Judge being bad in law should be set aside.

(4.) Mr. Swapan Kumar Mallick, learned Advocate for the State submitted that there is no merit in the revisional application. The prayer made by the learned Public Prosecutor in charge of the sessions case would not amount to fill in lacuna in prosecution case and evidence. Provisions of section 165 of the Evidence Act would be applicable here. The aforesaid sessions case arose out of Dhupguri P.S. Case No. 63/96 but the postmortem surgeon inadvertently mentioned Dhupguri P.S. Case No. 69/96 in his evidence and in the post-mortem report. The correction of P.S. case number through evidence of doctor in the post-mortem report does not amount to fill in lacuna of prosecution evidence. It was a mistake apparent on the face of the record and it can be corrected. The provisions of section 311 of the Code can be invoked by the Court, if the Court finds that fresh evidence or further evidence is required for the just decision of the case. The revisional application having no merit should be dismissed.

(5.) After hearing the submissions of the learned advocates for the parties and perusing the revisional application and contents thereof this Court is of the view that the submissions made by the learned advocate for the petitioners are not at all acceptable and have no force in the eye of law. It is evident from the materials on record that the aforesaid Sessions Case No. 124/99 arose out of Dhupguri P.S. Case No. 63/96 dated 12.7.96 under sections 147/148/149/341/ 323 and 302 of the Indian Penal Code (in short IPC). After completing investigatio