Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor.

(2). This petition under Section 482 Cr.P.C. is directed against the order dated 5th February, 97 passed by the learned Special Judge, S.C./S.T. (Prevention of Atrocities) Cases, Merta in Sessions Case No. 75/92 State vs. Cheeku Singh @ Shatrudaman Singh. By the aforesaid order dated 5th February, 97 the learned Special Judge directed that Herak Mohammed, in whose presence the dying decla-ration of Shri Jiya Ram was recorded, be summoned for examination under Section 311 Cr.P.C. It was observed by the learned Special Judge that it was in the interest of justice to summon Shri Herak Mohammed.

(3). The learned counsel for the petitioner has submitted that in this case the prosecution had closed its evidence. The accused petitioner had been examinedunder Section 311 Cr.P.C. and the case was listed for final arguments and it was not necessary in the interest of justice to call the witness Herak Mohammed and the impugned order passed by the learned Special Judge is not justified in law, because, it is tentamounting to filling of the lacunas left by the prosecution.

(4). The learned Public Prosecutor has opposed this petition.

(5). In view of Section 465 Cr.P.C., even if it is held that the lower court has committed any error, omission or irregularity, the orders passed by the lower court cannot be interfered with unless in the opinion of the Court a failure of justice has in fact been occasioned. It is, therefore, necessary to consider whether in the present case any failure of justice has been occasioned by passing of the impugnedorder by the learned Special Judge under Section 311 Cr.P.C.

(6). Section 311 of the Criminal Procedure Code reads :-

``311. Power to summon material witness, or examine person present.–Any Court may, at any stage of any inquiry, trial or other pro- ceeding under this Code, summon any person as a witness, or exa- mine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears it to be essential to the just decision of the case.

(7). This section is in two parts. Under the first part any Court may at any stage of inquiry, trial or other proceedings under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re- examine any person already examined.

(8). Under the second part, the Court is duty bound to summon and examineor recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. The necessity of finding out a criteria for properly exercising the discretion vested in first part of Section 311 arises from the fact that the power conferred by the first part is discretionary and the discretion must be exercised along well established judicial principles. Under the second part of Sec-tion 311, there is no discretion to summon or not to summon a witness. If the Court comes to the 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 any person, if his evidence appears to be essential to the just decision of the case. It is necessary to keep in mind the distinction between the two parts of Section 311 Cr.P.C.

(9). In Balwant Singh vs. The State of Rajasthan (1), a learned Single Judge of this Court in para no.14 of the judgment pointed out that the provisions of Section 311 Cr.P.C. are in two parts; in first part, it is permissible for the Court to exercise the discretion, but in second part, it is obligatory upon it to exercise the power. In that case in para no.43 of the judgment the learned Single Judge clearly pointed out that recalling of the three witnesses in the given circumstances of the case could not be said to be essential to the just decision of the case

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