The court held that the powers under Section 311 of the Code of Criminal Procedure should be exercised judicially with circumspection and consistently with the provisions of the Code. The court also held that the prosecution cannot be permitted to fill up the lacunas in its case by recalling witnesses after the accused have disclosed their defence.

1. This revision petition is directed against the order of the learned Additional Sessions Judge, Patiala, dated 21-7-1995 whereby he allowed recalling of PW Gurdeep Singh and permitted his further statement to be recorded. The statement of the said witness has not been recorded in view of the stay granted by this Court.

2. The facts as emerge from the records are that the petitioner and respondents No. 2 to 6 in this petition, were facing a trial under Sections 460, 302 read with Section 34 I.P.C. under F.I.R. No. 107 dated 14-8-1991. The prosecution evidence was in progress and the statement of PW Gurdeep Singh was recorded on 9-5-1995. Ultimately, prosecution evidence was closed on 10-7-1995. Thereafter the accused were put into witness box for recording their a statements under Section 313 of Criminal Procedure Code, hereinafter referred to as the Code, on 11th, 12th and 14th of July, 1995, respectively. The prosecution then filed application on 14-7-1995 praying that Gurdeep Singh may be recalled for further examination in the interest of justice. The learned trial Court vide the impugned order allowed the stay application and permitted the recalling of Gurdeep Singh for recording of his further statement. The petitioner is aggrieved from this order.

3. The main ground urged by learned counsel for the petitioner is that great prejudice will be caused to the accused because they have already disclosed their entire defence in recording their statements under Section 313 of the Code and the reasons given in the application do not constitute a sufficient ground within the meaning and preview of the provisions of Section 311 of the Code. On the other hand, learned counsel for the State submits that the order is well founded and has been passed to achieve the ends of justice.

4. Having heard the counsel for the parties at some length it is important to refer to the fact that the application for recalling PW Gurdeep Singh appears to have been typed on 9-5-1995, much prior to the date even when the prosecution evidence was closed and the accused were called upon to enter their defence upon recording their statements under Section 313 of the Code though this application was filed in the Court admittedly on 14-7-1995 after the aforestated proceedings have already been taken before the Court. There is no doubt that the powers of the Court under Section 311 of the Code are very wide and specifically empowers the Court to summon a witness or re-examine any person who has already been examined. The basic criterion which is of consideration before the Court in passing such an order is that it is essential to the just decision of the case. Thus the evidence has to be essential for the purposes of delivering a just decision of the case and the mere negligence and carelessness on the pact of a party cannot constitute a ground which will fall within the ambit and scope of this Section. Paragraphs No. 2 and 3 of the said application read as under :-

"2. That on 9-5-95 PW Gurdeep Singh was examined who was material witness before whom the accused made extra judicial confession.3. That inadvertently his full evidence could not he recorded."

The Court fails to see any reason that inadvertence admitted by a party clubbed with an absolute callousness in not presenting the application before the Court practically for a period of more than two months cannot be said to be a ground which would call for orders from the Court granting such permission. Nothing has been stated or argued before me to justify the said delay. Thus, the conduct of the prosecution certainly lacks bona tides and even the reasons stated in the application cannot be termed as sufficient reasons for invoking the power of the Court under Section 311 of the Code.

5. There is also substance in the other contention raised by learned counsel for the petitioner that the prosecution, as an afterthought, is now trying to till up the lacunas in its case and especially when the acc