IMPORTANT POINT
The court established that the power under Section 311 CrPC to summon or recall witnesses is essential for ensuring a just decision in criminal trials, and must be exercised with caution to avoid prejudice to the accused.

JUDGMENT :

Sanjay Kumar Dwivedi, J.

The petitioner has challenged the order dated 9.06.2016 passed by the learned Additional Sessions Judge-III, Garhwa in S.T. No.29/2015, arising out Garhwa P.S. Case No.512 of 2014 under section 302/ 34 of the IPC read with section 120B/34 IPC whereby the learned court has been pleased to allow the petition under section 311 Cr.P.C pending in the court learned Additional Sessions Judge-III, Garhwa.

2. The F.I.R has been registered alleging therein that on 18.08.2014 at about 8.00 a.m. the informant’s husband Balindra Kumar Singh, who had gone to Ranka on Hero Honda Motorcycle bearing No.JH14A-2022 but did not return in the evening. The informant tried to contact him on his Mobile No.94311 36643 and 89368 30074 but both were switched off. The informant suspected some mishappening and started searching her husband with the help of neighbours but did not find any clue till 19.8.2014. Thereafter the informant filed written information at the police station on 19.08.2014. On 21.08.2014 the informant came to learn that dead body of her husband kept in gunny bag was dropped in the well in a lonely place situated in village Tildag. The dead body was identified by the informant. The informant has suspected that unknown person has committed murder of her husband.

3. Mr. A.K. Kashyap, the learned Senior counsel appearing on behalf of the petitioner submitted that charge sheet was submitted against the informant himself and the investigation against the petitioner was kept pending and against three other accused persons. He submitted that the petitioner has been falsely implicated in this case and there is no whisper against the petitioner. He further submits that charge has already been framed under section 302, 201, 120B and 34 I.P.C. P.W.1 and P.W.8 (Investigating Officer) have been examined and the evidence was closed and thereafter case was pending for final argument on 30.05.2016 and 03.06.2016 and the argument was also advanced. He submits that by impugned order dated 9.06.2016, the learned trial court while going through the case record found that material evidence was not brought on record by the prosecution and as such the learned trial court has started considering evidentiary value of the evidence brought on record by the prosecution and he formed an opinion that the examination of several witnesses including the remaining witnesses of the charge sheet and some other witnesses if needed and re-examination of I.O. is necessary. He submitted that when said opinion was formed without assigning any reason as to why re-examination of the I.O and remaining witnesses of the charge sheet and other witnesses are necessary. He submitted that P.W.1 was examined on 18.06.2015 and P.W.8 has been examined by the prosecution therefore further and that was completed after consuming one year and final argument was completed. He submitted that during that period the prosecution has not filed any application under section 311 Cr.P.C for calling upon the remaining witnesses. He submitted that the learned trial court has also not considered the necessity of exercising such power. He submitted that when the argument was advanced by the defence and when lacuna was found the said order was passed which is against the mandate of law. He submitted that it is well settled that to fill up the lacuna of the prosecution case that section is not required to be exercised. He submitted that the important parameter of consideration of object under section 311 Cr.P.C, the learned court has not arrived at conclusion in absence of additional evidence, there would be failure of justice. He submitted that at fag end of the trial such power is exercised to fill up the lacuna and if the said order will be allowed to continue, the miscarriage of justice will be made against the petitioner. He relied in the case of “State of Haryana v. Ram Mehar and Others”, (2016) 8 SCC 762 and referred to paragraph nos.21, 22, 24, 25, 36, 39, 40 and 41,