The court held that the authority to summon material witnesses exists at any trial stage under Section 311 CrPC, emphasizing that introducing additional evidence is permissible when necessary for justice.

JUDGMENT :

HASMUKH D. SUTHAR, J.

RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent – State of Gujarat.

[1.0] Present Special Criminal Petition is filed under Article 226 and 227 of the Constitution of India read with Section 528 of the Bharatiya Nyaya Sanhita, 2023 (For short “BNSS ”) by the petitioner seeking to quash and set aside the order dated 07.07.2025 passed below Exh.73 by the learned Judicial Magistrate First Class, at Sanand, Ahmedabad in Criminal Case No.706 of 2024, whereby the learned Magistrate has been pleased to allow application Exh.73 filed under Section 348 of the BNSS (Section 311 of the CrPC) by the prosecution to examine additional two witnesses.

[2.0] Heard learned Senior Advocate Mr. I.H. Syed assisted by learned advocate Mr. Mohit Gupta appearing for the petitioner and learned Public Prosecutor Mr. Hardik Dave assisted by learned APP Ms. Shruti Pathak appearing for the respondent – State of Gujarat.

[3.0] Learned Senior Advocate has submitted that the present petitioner is an under-trial prisoner and investigation is concluded and charge-sheet is filed on 13.03.2024. Prosecution has cited 16 witnesses in the charge-sheet out of which 13 witnesses are private persons and 3 are Investigating Officers. He has submitted that though a statement has been made by the State before the highest Court of the country that prosecution will be examining only 16 witnesses cited in the charge-sheet, but now the prosecution filed application Exh.73 seeking to allow the prosecution to examine additional 5 witnesses and thus, the prosecution is not following the due procedure of law and as and when it wants, is producing the documents. Section 207 of the CrPC is not properly complied with by the prosecution. Though the defence has given an application Exh.5 praying to provide list of relied and unrelied documents from the prosecution, in piece meal manner, during the course of trial, as and when prosecution wants, they are tendering the documents which causes serious prejudice to the defence of the accused. Nonetheless, the alleged witnesses are irrelevant and there is no need to examine them. Even otherwise, said witnesses are also not cited as witnesses in the charge-sheet. Even, prosecution has failed to examine 5 witnesses under Section 311 of the CrPC (Section 348 of the BNSS) though Court has been pleased to pass an order to examine only 2 witnesses and defence has given the consent for the same. Further, he has submitted that the impugned order is not maintainable in the eyes of law as the learned Magistrate did not consider the fact that the prosecution is trying to fill up the lacunae in their case during the trial by introducing new witnesses, which would adversely affect the right of defence of the accused as they are not cited as witnesses in the chargsheet and statements are also not recorded during the investigation. Further, the trial is at the verge of completion and accused has already disclosed his defence and hence, at belated stage, such permission is against the law. The learned Magistrate has misread the dictum of Hon’ble Supreme Court in the case of Rajaram Prasad Yadav vs. State of Bihar and Another reported in (2013) 14 SCC 461 which never allow the prosecution to fill up the gap and lacunae as after examination of the witnesses, proper course is to re-examine the witness under Section 138 of the EVIDENCE ACT and rather than to re- examine the witness, prosecuction wants to fill up the lacunae and examine the witness without re-examination of said witness. Though without any justification learned Magistrate on its own jumpned to the conclusion that it is necessary to examine such witnesses for just decision of the case and presumed culpability of accused. Already 13 witnesses have been examined and now 3 witnesses are required to be examined. The defence is ready to expedite the trial also and even as per the statement made by prosecution before the Hon’ble Sup