ORDER :

N. ANAND VENKATESH, J.

1. This petition has been filed challenging the order passed by the Court below allowing the application filed under Section 311 of Cr.P.C., by the prosecution to examine a witness viz., the Sub-Inspector of Police, Uvari Police Station and to mark a complaint that was given to him by P.W. 1.

2. The petitioners are facing trial before the Court below for an offence under Sections 294 (b), 342, 302 and 506 (ii) IPC., r/w 34 IPC. The prosecution had examined P.W. 1 to P.W. 20 and none of the witnesses were examined by the petitioners. At this stage, the prosecution had filed an application under Section 311 of Cr.P.C., to examine a new witness, not shown as a witness in the final report, in order to mark a complaint given to him by P.W. 1 and this complaint also does not form part of the final report filed by the prosecution.

3. This application was opposed by the petitioners on the ground that P.W. 1 has not spoken about giving any complaint against the accused persons, even in the statement given to the Investigating Officer under Section 161 of Cr.P.C. For the first time, when P.W. 1 was in the witness box, she made a statement to that effect. The prosecution cannot introduce any new witness or file any additional document without the same being the part of the final report and the prosecution has to necessarily seek for further investigation and file a further report, wherein, the statement of the additional witness and the additional document can be brought before the Court and this will give an opportunity to the accused persons to exactly know the materials that are available against them. Without doing so, the attempt made by the prosecution is only to fill up lacunae and the accused persons will be put to irreparable loss and hardship, if the 311 application is allowed.

4. The Court below after considering the facts and circumstances of the case and also the reasons assigned by the prosecution for examination of the additional witness and marking of additional document, thought it fit to allow the application.

5. The learned counsel for the petitioners submitted that the accused persons have been exposed to a new fact, which was neither available in the complaint nor in the final report filed by the respondent police. Therefore, to that extent, the accused persons are prejudiced by the order of the Court below allowing the application filed by prosecution under Section 311 of Cr.P.C.

6. The learned counsel for the petitioners further placed reliance upon Section 173 (5) of Cr.P.C. and submitted that it is the duty of the Investigating Officer to file along with the report all the documents that are relied upon by the prosecution and all the statements recorded under Section 161 of Cr.P.C., whom the prosecution proposes to examine as a witness. In this Case, the additional witness was not shown as a prosecution witness in the final report and the document that is relied upon was not filed along with the report. Therefore, the learned counsel submitted that the prosecution cannot be allowed to bring in additional evidence in an indirect manner.

7. The learned Additional Public Prosecutor appearing on behalf of the respondent police submitted that even as per the case of the prosecution, there was a previous motive behind the entire incident and it was spoken by P.W. 1 when she was examined on the side of the prosecution. This previous motive is now sought to be substantiated by examining an additional witness and marking a document viz., the complaint. The learned counsel submitted that for this purpose, there is no requirement to file a further report under Section 173 (8) Cr.P.C. and the language used under Section 311 of Cr.P.C., is wide enough to cover the contingency that has arisen in this case.

8. The learned Additional Public Prosecutor further submitted that the petitioners have not examined any of the witnesses and therefore there is no question of the prosecution attempting to cover up the