The discretionary power under Section 311 Cr.P.C. should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Cr.P.C.

1. - Accused - petitioner has filed this criminal misc. petition under Section 482 Cr.P.C. challenging the order dated 5.7.2013 passed by Special Judge, N.D.P.S. Cases, Jhalawar (hereinafter referred to as 'the Trial Court') in Criminal Case No. 54 of 2011, NCB v. Jagdish & Ors. whereby the learned trial Court has dismissed the application under Section 311 Cr.P.C. filed by the petitioner.

2. Brief facts of case are that the petitioner is facing criminal trial in Criminal Case No. 54/2011 for the offence under Sections 8/18 and 8/20 of the N.D.P.S. Act. During the course of trial an application was filed by the petitioner to recall the prosecution witnesses namely Bhagat Singh and Seizing Officer Anil Kumar as during the course of cross-examination, alleged trolley was not produced wherein it has been alleged that from the dickey of the trolley opium was recovered and it was also mentioned that practically it is not possible for any person to keep the huge quantity of opium, as dickey is very small in size. The learned trial Court vide order dated 5.7.2013 dismissed the application under Section 311 Cr.P.C. filed by the petitioner-accused. Being aggrieved with the order dated 5.7.2013 passed by the learned trial Court, the petitioner has preferred present misc. petition under Section 482 Cr.P.C.

3. Learned counsel for the petitioner submitted that the impugned order passed by the learned trial Court is not sustainable in the eyes of law being contrary to the provisions of law and facts of the case. The learned trial Court has committed grave illegality in rejecting the petitioner's application because in order to do justice, full opportunity should be given to the accused to prove his innocence and in the present case it is apparent that defence evidence is valuable right of the accused and in application sufficient reasons were mentioned to call the witnesses. Learned counsel for the petitioner further contended that the learned trial Court has failed to appreciate the provisions of Section 311 Cr.P.C. because it is established that further or additional evidence or defence evidence is essential for just decision of the case and the same can be ordered at any stage of the case and in the facts and circumstances of the present case cross-examination is very essential for just decision of the present case. In the language of Section 311 Cr.P.C., the very usage of the words such as 'at any stage' or 'of any enquiry, trial or other proceedings, any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Cr.P.C. The second part of the section does not allow for any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case, therefore, in the above mentioned circumstances, learned trial Court has committed grave illegality by declining the right of the petitioner to call the witnesses mentioned in the application, therefore, fair justice can not be done without examination of the aforesaid witnesses and their examination is very essential to the just decision of the case and therefore in these circumstances, application filed by the petitioner should have been accepted. Learned counsel for the petitioner, therefore, prayed that impugned order dated 5.7.2013 passed by the learned trial Court be quashed and set aside and the application under Section 311 Cr.P.C. may kindly be allowed in toto.

4. Learned Special Public Prosecutor appearing on behalf of the respondent-Narcotics Control Bureau opposed the prayer of learned counsel for the petitioner and submitted that the order passed by the learned trial Court is absolutely legal and prope