( 1 ) ). This Criminal Revision Application has been preferred by the State against the order dated 8/07/1983 passed by the learned Additional sessions Judge, Morvi in Cri. Rev. Appli. No. 4 of 1983 setting aside the order of the learned Judicial Magistrate, F. C. , Morvi passed below application Ex. 4 in Criminal Case No. 534 of 1983.

( 2 ) ). A small but very important and interesting point for Courts consideration has been raised by the Public Prosecutor in this Criminal Revision Application filed on behalf of the State. The point is :"under Sec. 311 of the Cr. P. Code, would it be permissible for the magistrate to allow the Public Prosecutor to examine prosecution witnesses after closing of prosecution evidence and recording further statement of the accused under Sec. 313 of the Code of Criminal Procedure, And whether the power conferred upon the Magistrate under Sec. 311 of the cr. P. Code is mandatory or discretionary powers ?"

( 3 ) ). A few facts of the prosecution case are necessary to be stated herein. The respondent accused was chargesheeted for offences punishable under Secs. 408 and 409 of the I. P. Code on the accusation that the accused had committed breach of trust by misappropriating sum of Rs. 862-62 ps. during the course of his service as Secretary-cum-Mantri of Hadmatiya Village Panchayat, hadmatiya, District Rajkot. A chargesheet was issued and the accused was prosecuted for the aforesaid offences by the learned J. M. F. C. Morvi in Criminal case No. 534 of 1980. In the chargesheet, names of 10 prosecution witness have been mentioned as prosecution witnesses. Summons were issued to the prosecution witness by the Court but it transpires from the record that inspite of several adjournments sought by the Addl. P. P. , except complainant, none of prosecution witnesses cited in chargesheet had come forward to depose in support of the prosecution case. Lastly, application Exh. 47 was submitted on nov 5/11/1982 by Addl. P. P. for one more adjournment which came to be rejected by the learned J. M. F. C. and closed prosecution evidence thereafter. Further statement of the accused under Sec. 313, Cr. P. C. had been recorded on 11-11-1982. The arguments of learned Advocates were heard on 23-11-1982 and the case was adjourned to 8-12-1982 for pronouncement of judgment. On 8-12-1982, the learned Additional P. P. moved an application Ex. 49 to the court under Sec. 311, Cr. P. C. and requested the learned Magistrate to issue summons to the prosecution witnesses and to allow him to examine them in support of the prosecution case. The learned Advocate for the accused had opposed that application (Exh. 49 ). However, the learned Magistrate was pleased to issue summons to the prosecution witnesses by his order below Ex. 49 dated 8-12- 1982. The accused challenged said order in the Court of the Additional Sessions judge, Morvi in Criminal Revi. Appli. No. 4 of 1983. The learned Addl. Sessions judge has allowed Cri. Revi. Appli. of the accused and set aside the order of the learned Magistrate dated 8-12-1982 passed below application (Exh. 49) by his judgment and order dated 8-7-1983. The impugned order has been challenged by the State in this Cri. Revi. Application.

( 4 ) ). Mr. Dave, learned Addl. P. P. appearing on behalf of the State has vehemently submitted that the order of the learned Additional Sessions Judge is erroneous and illegal as he failed to appreciate true meaning and object of the provisions of Sec. 311 of Cr. P. C. Further, he has submitted that as the powers exercised by the learned Magistrate under Sec. 311 of Cr. P. C. is a discretionary powers, it is not open for the accused to challenge the same in revision Application. The learned Addl. P. P. has relied on some rulings of the Court which I will refer later on. They are : (i) 1980 Cri. LJ 858 (Aeltemesh Rein v. State of Maharashtra), (ii) AIR 1969 Mysore 24 (iii) 1972 0 Crlj 994 (State v. Ul Fatia) (iv) AIR 1964 Bombay 165 (Shreelal Kajaria v