Hon'ble SHARMA, J.—This criminal revision petition has been filed under section 397 Cr.P.C. read with section 401 Cr.P.C. against the order dated 12.11.2010 passed by Addl. Sessions Judge Fast Track No.1 Beawar in Sessions Case No. 48 of 2008 under section 302 IPC, whereby the application of the State under section 311 Cr.P.C. was allowed at the stage and on the date of pronouncement of judgment.

2. Brief facts of the case are that on 15.7.2008 Vinod Kumar lodged first information report before the SHO Police Station Beawar Sadar, District Ajmer for the offence under section 302 IPC. The accused was arrested on same day. Charge sheet was filed in the trial court and charge under section 302 IPC was framed. The prosecution witnesses PW.l to PW.14 were examined by the prosecution and further the prosecution produced documents Ex.P/l to Ex.P/42. In defence one witness DW.1 was examined on 20.6.2009 and thereafter final arguments were heard of both sides and the case was fixed for pronouncement of judgment on 7.9.2010 but due to some reasons the judgment could not be pronounced on that day and the next date for pronouncement of the judgment was fixed as 18.9.2010 and on this date the prosecution moved an application under Section 311 Cr.P.C. for recalling the Investigating Officer, for which the reply was filed and arguments were heard and the application was accepted on 12.11.2010. Against this order of the trial court, the present revision petition has been filed by the petitioner for quashing the order dated 12.11.2010 permitting the prosecution to produce the Investigating officer.

3. In the revision petition it has been contended by the learned counsel for the petitioner that the provisions of section 311 Cr.P.C. clearly specified that this section can only be invoked during the trial. He has further contended that when the case is posted for pronouncement of judgment no such application can be entertained by the trial court and the trial court has not considered the provisions of section 311 Cr.P.C. He has further drawn the attention of this court on the judgment of this court in Vinod Kumar Singh vs. State of Rajasthan 2009 (2) Cr.L.R. (Raj.) 978).

4. Mr. Peeyush Kumar, Public Prosecutor appearing on behalf of the State has seriously opposed the arguments advanced by the learned counsel for the accused petitioner. The learned Public Prosecutor has submitted that the order passed by the trial court is in accordance with law. He has further contended that the prosecution has right to file application under section 311 Cr.P.C. at any stage of the trial. He has further contended that the calling of the witness was not to fill up lacunae of the prosecution.

5. I have heard the learned counsel for the parties.

6. Before proceeding further it would be necessary to have a look at the provisions of section 311 Cr.P.C. and the same reads as under :

"311. The power to summon material witness, or examine person present.—"Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine\any person in attendance, though not summoned as a witness, or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case".

7. 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 re-examine 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 Se

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