1. An accused who is disgruntled with the proceedings before the trial court (Additional Assistant Sessions Court, Palakkad) where his case was re-opened suo motu for further examination of witnesses under Section 311 of the Code of Criminal Procedure (for short ‘Cr.P.C’) for more occasions than one, that too when posted for Judgment, is before this court with this petition under Section 482 of the Cr.P.C. to quash the order.

2. The accused in S.C.287/2008 including this petitioner (2nd accused ) are facing trial for having committed offences punishable under Sections 143, 147, 148, 324, 341, 308 read with Section 149 of the Indian Penal Code (hereinafter referred to as ‘IPC’).

3. The prosecution allegation against the accused in brief, is that on 15.8.2005 at about 20 hours, they formed themselves into an unlawful assembly with the common object to attack the de facto complainant, trespassed into a Tuition Centre known as ‘Prathibha Tuition Centre’, where he was conducting RSS Physical Training Camp and wrongfully restrained him and caused injuries with deadly weapons and attempted to commit culpable homicide not amounting to murder. Before the trial court, PWs.1 to 7 were examined and the learned Public Prosecutor had given up CWs.3, 4 and 5. Thereafter, the prosecution closed the evidence and on 27.3.2012, the accused were questioned under Section 313 of Cr.P.C and as there was no defence evidence, the case was posted for arguments and arguments were heard on 7.6.2012 after several postings. Then instead of pronouncing Judgment, on 26.6.2012, the evidence was re-opened suo motu and summons was ordered for examination of CWs. 3, 4 and 5 though they were earlier given up by the prosecution. CWs. 4 and 5 were examined as PWs. 7 and 9 and CWs.3, 8 & 10 were again given up by the prosecution. After closure of the prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C. and they denied the incriminating material against them. As there was no defence evidence, the case was adjourned for hearing to 1.12.2012 and it was adjourned further and finally it was heard on 15.2.2013 and the case was posted for pronouncing Judgment to 6.3.2013. On 6.3.2013, the trial court again suo motu re-opened the evidence and ordered fresh summons to PWs.1 and 2.

4. The said order is assailed in this petition which reads as follows:

“On perusal of the evidence (depositions) of PW1 and PW-2 it has come to the notice of this Court that on the day Pws.1 & 2 were examined, i.e. on 14.2.2012, A2 was absent. Hence the witnesses have not got an opportunity to identify A2 in court. So also no specific questions were seen put to these witnesses by prosecution enabling them to identify each and one accused in the dock. Hence I deem it fit and proper in the interest of justice to re-open the evidence and further examine PWs.1 & 2 in the presence of all the accused on the aspect of identification of each accused in Court. Hence prosecution evidence is suo-moto reopened and PWs.1 and 2 are re-called for further examination. Issue fresh summons to Pws.1 and 2 for further examination, Issue fresh summons to PWs. 1 and 2 for further examination in the presence of all the accused.”

5. Heard the learned counsel for the petitioner as well the learned Public Prosecutor.

6. Referring to the order it is urged with vehemence by the learned counsel for the petitioner that the powers conferred by the court under Section 311 of Cr.P.C is to do complete justice to the parties and not for filling up the lacuna left by the prosecution and further examination of the witnesses already examined as PW1 and 2 would cause prejudice to the accused. Hence, the order is liable to be set aside to do justice to the parties, submits the learned counsel for the petitioner.

7. Learned Public Prosecutor has submitted that the court is duty bound to see that the witnesses are examined for the just decision of the case and therefore, the order of the court to re-ope