The prosecuting agency has a responsibility to ensure the availability of witnesses for examination, and the court may exercise its power under Section 311 Cr.P.C. to recall a witness if necessary.

1. - This petition is on behalf of the complainant and raises a question which reflects upon the state of affairs with which the criminal justice is administered by the prosecuting agency in the State of Rajasthan.

2. It is the responsibility of the prosecuting agency to assist the Courts in examination of witnesses. Whatever process is issued by the Courts is served through police officials which are integral part of prosecuting agency.

3. In the instant case, statement of police witness has not been recorded by the Court because he has not turned up on a number of occasions. His evidence was closed. After closure of evidence of police official, an application was made by the Public Prosecutor seeking indulgence of the Court for examination of that witness. The Court was magnanimous enough to permit examination of that witness and fixed the date for calling that witness. The public prosecutor in his application has stated in the following terms:

"bl xokg dks is'k djus ds fy, vfHk;kstu dks ,d volj U;k; fgr esa vkSj iznku djs vkxkeh is'kh ij bl xokg dks is'k ugha djus ij C;ku eqyfteku fy;sa tk;s rks vfHk;kstu dks dksbZ ,rjkt ugha gksxkA"

4. By the said application, it is clearly stated that if on the next date of hearing, this witness does not turn up, then prosecution will not raise any objection if statement of the accused is taken that means closure of the prosecution evidence. Curiously enough, this witness did not turn up on such appointed date. Such situation is generally arising in Criminal Courts. The police witnesses do not appear as and when they are required to be present before the Court. The Court has noticed in this case that no reason has been recorded for his absence. In view thereof, evidence of this witness was closed. The prosecution has not chosen to challenge this order.

5. Learned Public Prosecutor's stand in not recommending the State to seek any redressal against the said order shows indifference of the Institution of the Public Prosecutor. That being the position, this Court is pained to note that fair trial is affected on account of the Agency which is responsible for investigating the case and prosecuting the accused. In fact, police witnesses should be kept ready by the prosecuting agency itself for examination. Why it should be left to the Court to summon them.

6. The order impugned also records that statement of PW 20 Bharatlal was completed after the report of Malkhana Clerk.

7. The complainant in his revision stated that statement of Bharatlal was also incomplete because complete Malkhana was not there. The statement of learned counsel for the complainant runs contrary to the contents of the order of the Trial Court. The complainant wants that witness PW 20 Bharatlal should also be recalled under the powers conferred on the Courts under Section 311 Cr.P.C. He places reliance on the Supreme Court Decision in the case of Rajendra Prasad v. Narcotic Cell, 1999 (6) SCC 110 wherein it has been observed as under:-

"Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the to prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. is After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

8. To support his contention, learned counsel for the complainant has also placed reliance on various decisions in the case of Sugni Devi v. State & Ors., 1998 Cr.LR (Raj.) 157 , Rikhab Chand v. State, 1991(1) RLW 305 , Padam Singh v. State, 1998 (