JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Gopal Krishna Sinha, the learned counsel for the petitioners, Mrs. Vandana Bharti, the learned State counsel and Mr. A.K. Rashidi, the learned counsel appearing on behalf of the O.P.No.2.

2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. The petitioners have filed this petition to challenge the order dated 02.03.2020 passed in S.T. Case No. 247 of 2017 arising out of Ranka P.S. Case No. 39 of 2017, corresponding to G.R. Case No. 649 of 2017 whereby the court below had allowed the petition dated 19.02.2020 under section 311 Cr.P.C.

4. Mr. Gopal Krishna Sinha, the learned counsel appearing on behalf of the petitioners challenged the said order on the ground that at the fag end of the trial all of a sudden this petition was filed under section 311 Cr.P.C. for examining the father of the deceased as a witness on behalf of the prosecution. He submits that at the fag end of the trial allowing that application that too, in absence of the name of the said person in the charge-sheet witness which amounts to filling of the lacuna in the trial. He submits that this aspect of the matter has been decided by this Court in a case of “Dhullu Mahto @ Dhullu Mahto v. The State of Jharkhand” reported in (2017) 3 JCR 13 (Jhr.). He relied on paragraph no.12 and 13 of the said judgment, which are quoted hereinbelow :

“12. What would thus fall from the aforesaid judicial pronouncements quoted above is that the provisions of Section 311 Cr.P.C. is by way of mechanism to let the trial court arrive at a truth and such power has obviously to be exercised judiciously and the same cannot be allowed by either the prosecution or for the defence to fill-up the lacuna in their respective cases.

13. Coming back to the factual matrix of the case the petitioner is a sitting Member of Jharkhand Legislative Assembly and prosecuting the petitioner sanction was sought for by the Investigating Officer. This fact was never in the knowledge of the petitioner but such information has been subsequently gathered. It is not in dispute that the efforts made by the Investigating Officer in obtaining sanction from the prosecution of the petitioner being conspicuously absent, P.W. 9 and P.W. 11 were, therefore, never examined or cross-examined on the said fact. It is no doubt true that the prosecution witnesses have been examined and the accused persons have also examined under Section 313 of the Cr.P.C. but in view of the provisions of Section 311 of the Cr.P.C. even at the fag end of the trial an application under Section 311 of the Cr.P.C. can be considered and if necessary allowed if the court finds that allowing such application will not render filling up of the lacuna in either the prosecution case or the defence case.”

5. He further submits that this Court has decided this issue and held that section 311 Cr.P.C. will not be allowed for filling of the lacuna, either in the prosecution's case or in defence's case. He further relied in the case of “Bhim Modi v. State of Jharkhand And Anr.” reported in 2015 (1) JCR 374 (Jhr.) Para 7 and 8 of the said judgment are quoted hereinbelow :

“7. No doubt power under Section 311 Cr.P.C. can be exercised at any stage of enquiry, trial or proceeding and it is settled principle that the trial or enquiry does not terminate till pronouncement of judgment or passing of order. However, in the present case, as noticed above, several opportunities had been given to the complainant to produce witness but the complainant with intent to delay/prolong the trial kept filing petition seeking time to produce witness. The onus was on the complainant to produce the witness and it is apparent from the order-sheets that the court had on couple of occasions directed the