The court emphasized that Section 311 Cr.P.C. must be applied judiciously and not to fill gaps in evidence at the conclusion of trial.

Judgment :

ANAND SHARMA, J.

1. By way of filing this criminal misc. petition, the petitioner has challenged order dated 10.01.2019 passed by the Court of Special Judge, Dacoity Affected Area, Dholpur (hereinafter to be referred as 'the trial court') in Sessions Case No. 57/2018 (CIS No. 48/2017) titled as State Vs. Bheemsen & Others, whereby, application under Section 311 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as 'Cr.P.C.') filed by the prosecution has been allowed and direction was issued by the trial court to summon witness, namely, Dr. Brajmohan Mangal for examination.

2. It is stated that pursuant to F.I.R. No. 96/2015 lodged on 28.04.2005 against the petitioners for alleged offences punishable under Sections 143 , 323, 341 and 452 of the Indian Penal Code (hereinafter to be referred as ' IPC '), after investigation, charge sheet was filed against them for offences punishable under Sections 323 , 341, 325, 452, 307 and 34 . Charges were framed by the trial court against against the petitioners and thereafter, statements of prosecution witnesses were recorded. After completion of evidence of prosecution witnesses, statements of the petitioners under Section 313 Cr.P.C. were also recorded by the trial court. Thereafter, the defence also completed its evidence. It is further submitted that after completion of entire evidence, the matter was fixed for final arguments on 06.12.2018 and on that day, arguments from both the sides were heard by the trial court and time was granted to both the sides for submitting written arguments. The case was fixed for further orders on 18.12.2018.

3. On 18.12.2018, Public Prosecutor submitted an application under Section 311 Cr.P.C. with the contention that opinion with regard to nature and extent of injuries was given by Dr. Brajmohan Mangal, however, his name could not be mentioned in the list of witnesses along with charge sheet. It was submitted that in order to properly adjudicate the trial, examination of Dr. Brajmohan Mangal along with X-Ray Report and Register would be necessary. Hence, a request was made to summon Dr. Brajmohan Mangal as prosecution witness.

4. Such application was seriously opposed by the defence by contending that the application is nothing, but to derail and delay the trial and has been filed at the stage when virtually trial of the case has been completed and the judgment is to be delivered after taking on record the written arguments from both the sides. Thus, the application has been filed by the prosecution maliciously, in order to fill up the gaps in the prosecution evidence. Hence, the application filed by the prosecution was liable to be dismissed.

5. After hearing both the sides, vide orer dated 10.01.2019, application under Section 311 Cr.P.C. filed by the prosecution was allowed by the trial court and summons were directed to be issued to witness, Dr. Brajmohan Mangal to appear before the trial court on 02.02.2019 for his examination along with X-Ray Report and Register.

6. Learned counsel for the petitioners as well as learned Public Prosecutor repeated their arguments as put forward by them before the trial court. Learned Public Prosecutor has relied upon the judgment of the Hon'ble Supreme Court in the case of K.P. Tamilmaran Vs. State by Deputy Superintendent of Police , 2025 SCC OnLine SC 958, wherein it was held that the power under Section 311 Cr.P.C. is discretionary and can also be exercised by the Court suo motu or on an application filed by either side where the court is of the view that examination of wi