The court should not summon a witness under Section 311 Criminal Procedure Code unless it is of the opinion that the prosecution could not have examined the witness at the appropriate time when they were summoned or that some such event had taken place because of which recalling of the witness was essential.

1. - This is an application under Section 482 Criminal Procedure Code in case No. 72 of 1983 pending in the Court of Additional Chief Judicial Magistrate No. 2, Kota for offence under Section 4/9 of the Opium Act.

2. Alarming facts giving rise to this application are that accused petitioner is facing trial under Section 4/9 of the Opium Act ever since February, 1983 and for five years the prosecution evidence could not be completed but it was for the attitude of an Investigating Officer as early as 16-5-86 that Investigating Officer, Shri Shiv Rajsingh, A.S.I., was summoned and the case was listed for his evidence on 16-7-86. Witness was not present on 16-7-1986 hence, it was adjourned to 30th September 1986. The order-sheet of this date discloses that both Shiv Rajsingh and Govind Singh were absent despite service of summons. The reason for absence was also not disclosed. Hence, warrant of arrest was ordered to be issued along with the issuance of notice under Section 350 Criminal Procedure Code . After dictation of this order-sheet, another Shiv Rajsingh, A.S.I., appeared in the Court and said that he has been wrongly served and he is not a witness in the case. He stated that Shiv Rajsingh, A.S.I., who is to be examined, is posted in Bundi District hence, the Court ordered to summon him. Notices were ordered to be sent to Shiv Rajsingh, A.S.I. through Superintendent of Police, Bundi. The order-sheet discloses that since he did not appear despite service, ne should be summoned through non-bailable warrants. The case was then posted on 11-12-1986. Witness was neither present on 11-12-1986 nor on 15-1-1987 hence the case was adjourned. Fresh warrants were ordered to be issued against Shiv Rajsingh, A.S.I., on 18-2-1987 then again on 28-3-87 and 25-4-87. Once again it was written to the Superintendent of Police on 21-5-87 to ensure his presence. Court again recorded similar order-sheet on 20-6-87. He was again not present on 31-7-87 and then on 11-9-87. On this day last opportunity was given to the Public Prosecutor to produce the witness. Thus, 14 opportunities were given to the prosecution for the examination of the Investigating Officer of the case but the witness did not turn up which resulted in closing of the prosecution evidence and recording then statements of the accused. Accused examined one Abdul Wahid in his defence and closed his evidence on 21-1-1988. The case then listed for final arguments. Due to various reasons including strike in courts, the arguments could not be completed and suddenly on 2-8-1988, Public Prosecutor moved an application for examining Shri Shiv Rajsingh who was present in the Court according to the application. Public Prosecutor recorded in the application that in the interest of justice it is essential to examine this witness because it is he who has recovered the opium. The learned trial Court allowed the application, though it was strongly opposed by the accused, vide its order dated 8-8-1988 which is under challenge in this petition.

3. Learned counsel for the petitioner submits that Section 311 Criminal Procedure Code cannot be pressed into service for summoning a witness whose evidence has been closed by the Court after careful consideration because the party had refused to produce witness despite several applications and issuance of several processes by way of summons and warrants. It is submitted that once the evidence is closed at the instance of the Public Prosecutor himself then calling the witness shown in the calendar of witness is not contemplated in the section. It is submitted that after the statement of the accused is recorded and the defence is also examined, to permit a witness to be examined is to give an opportunity to the prosecution to nullify the effect of the defence of the accused. It is further submitted that it is unfair on the part of the prosecution first to drop the witness and then to insist upon recording his statement under Section 311 Criminal Procedur