Goverdhan Bardhar, J.

1. Instant revision petition has been filed by the petitioners against the order dated 28.6.2016 passed by learned Addl. Session Judge, Merta, District Nagaur in Sessions Case No. 73/2015 whereby, he allowed the application filed by the prosecution under Section 311 Cr.P.C. to summon the witnesses.

2. In the application filed by the prosecution under Section 311 Cr.P.C. it was stated that the case is fixed for final arguments but the witnesses PW-2 Jai Ram and PW-7 Chhitar Singh are important witnesses in the case and they have to be re-examined and may be summoned.

3. In reply to the application filed by the prosecution the petitioners stated that the case is not fixed for final arguments but final arguments were heard on 18.5.2016 and the case is now fixed for pronouncement of judgment, therefore, at this stage, the application filed by the prosecution under Section 311 Cr.P.C. is not liable to be entertained.

4. The learned Trial Court allowed the said application vide impugned order dated 28.6.2016, hence, this revision petition.

5. Learned Counsel for the petitioners argued that when the case was fixed for pronouncement of judgment, the application under Section 311 Cr.P.C. is not maintainable. It is argued that at the tail-end of the trial, the prosecution has moved the said application and therefore, the power under Section 311 Cr.P.C. should not be invoked to permit the prosecution to fill up their lacuna. He placed reliance upon the judgment in the case of Vinod Kumar Singh v. State of Rajasthan, reported in 2009 (2) Cr.L.R. (Raj.) 978, Union of India v. Chanchal Singh & Others, reported in 2010 WLC 713 and Bhagwan Ram v. State of Rajasthan, reported in 2012 (1) Cr.L.R. (Raj.) 422.

6. On the other hand, learned Public Prosecutor supported the order passed by the learned Trial Court and contended that prosecution has right to file application under Section 311 Cr.P.C. and power to recall a witness, granted by Section 311 Cr.P.C. is a vast power, which should be invoked in order to ensure fairness of a trial.

7. I have heard learned Counsel for the parties and perused the record. On perusal of order-sheets, it is revealed that the matter was fixed on 9.5.2016 for final arguments and the matter finally heard and fixed for pronouncement of judgment on dated 18.5.2016. On 18.5.2016, the judgment could not be pronounced and again the matter was fixed for pronouncement of judgment on dated 25.5.2016. It is not in dispute that after conclusion of the trial and completion of final arguments of both the sides, the application under Section 311 Cr.P.C. was filed. Thus, in the present case, the trial was already over when the Trial Court posted the matter for judgment. Consequently powers under Section 311 Cr.P.C. could not have been exercised by the Trial Court once the trial stood terminated and the case was posted for judgment. The Co-ordinate Bench of this Court while dealing with this aspect of the matter in the case of Bhagwana Ram (supra) has held as under:-

"According to the provisions of Section 311 Cr.P.C. the summoning of the witness is in two parts. Under the first part, any Court may, at any stage of inquiry, trial or other proceedings under the Code, summon any person in attendance, though not summoned as a witness or recall and re-examine any person already examined. Under the second part, the Court is duty bound to summon and examine or recall and reexamine any such person if his evidence appears to be essential to just decision of the case. The powers conferred by the first part of Section 311 Cr.P.C. is discretionary and such discretion has to be exercised in accordance to the established principles of law. However, under the second part of the provision of Section 311, there is no discretion to summon or not to summon a witness. If the Court comes to conclusion that it is necessary for the just decision of the case, the Court is duty bound to summon and examine or recall or re-examine an