The court can intervene and allow the recall of witnesses under Section 311 Cr.P.C. in cases of abuse of process of law and prolonged trial, despite the prosecution's failure to produce them.

1. - By this petition under Section 482 Criminal Procedure Code the order dated November 23,1993 is being challenged, whereby the learned Ttrial Magistrate allowed the application filed by the A.P.P. under Section 311 Cr.P.C, direction to recall the witnesses, Om Prakash, Hariom, Murarilal and Jainarayan.

2. The facts of the case are that all the four petitioners are facing trial u/Sees. 147, 323, 452 IPC in the Court of Additional Chief Judicial Magistrate, Bandikui for an occurrence, which had taken place in the year 1982. The trial remained pending as the prosecution witnesses were not coming and subsequently vide order dated August 31, 1991 the learned Magistrate closed the evidence. It may be stated that in spite of the last opportunity given to the prosecution the witnesses were not brought. Thereafter, the statement of the accused was recorded and 27th October, 1991 was fixed for final arguments. On this day, the learned Magistrate heard the final arguments and 29th October, 1991 was fixed for pronouncement of order. However, the order was not pronounced on that day and the next date was fixed as 2nd November, 1992. On this date the learned A.P.P. moved an application under Section 311 Criminal Procedure Code to recall these witnesses and the learned Magistrate passed the impugned order.

3. It is contended by the learned Counsel that Section 311 Criminal Procedure Code is not intended to fill up gap left out by the prosecution. Counsel contended that when the prosecution itself was guilty of not examining the witnesses, they cannot be given premium subsequently by passing an order under Section 311 Criminal Procedure Code the learned Counsel has placed reliance on Magan Singh S/o Shedan Singh v. The State of Rajasthan (1990 Cr. L.R.(Rajasthan) , page 611, wherein it has been observed as under:

"Sec. 311 Criminal Procedure Code is not enacted by the Legislature for filling up the gap left by the prosecution or suo moto by the Court to elicit the facts which otherwise have not been brought on record by the prosecution or the defence. The Court has not to act as Investigating Agency by recalling the witness in the manner, it has been done. It is true that the Court has unriddle power to re-summon or recall the witness before conclusion of the trial, but that discretion has to be sound judicial discretion and thus judicial act must be based on sound judicial principles and not acting as prosecutors or persecutors. I am fortified in view by the decision of this Court report in 1986 RLW 112."

4. On the other hand, the learned Counsel appearing for the complainant, contended that Section 311 Criminal Procedure Code in two parts and the impugned order has been passed under the first Part, which is mandatory in nature. It was also contended that even to fill up the lacunas, the Court can exercise powers under the and Part of Section 311 Criminal Procedure Code The learned Counsel further contended that three of the four left out witnesses are eye witnesses of the occurrence and as such they are material witnesses and this Court should not interfere in exercise of powers under Section 482 Criminal Procedure Code

5. Normally, this Court does not interfere in exercise of powers under Section 482 Cr.P. in an order passed by the Trial Court under Section 311 Criminal Procedure Code But there are peculiar circumstances in the present case. The petitioners were facing trial for petty offence since 1982 and the learned trial Magistrate after giving opportunities to the prosecuting agency to examine the witnesses, closed the evidence as it failed to produce the witnesses for such a long period. The order closing the evidence was passed on August 31,1991 i.e. after 9 years or so of the date of occurrence. The said order was not challenged and no application was moved by the A.P.P. Under Section . 311 Criminal Procedure Code at any stage. Arguments were also heard and realising that the prosecution case cannot succeed, the application