The trial is not terminated until the judgment is pronounced, and the court has wide powers under Section 311 Cr.P.C. to summon and examine witnesses at any stage of the trial if their evidence is essential for a just decision.

Satish Kumar Mittal, J.

1. Petitioner Kala Ram, who is facing trial in case No. 63 N.D.P.S. Act, F.I.R. No. 105 dated 26.2.2001 under Sections 15/61/85 of the N.D.P.S, Act at Police Station, Ratia, has filed the instant petition under Section 482 Cr.P.C. challenging the order dated 27.9.2004 passed by the Additional Sessions Judge, Fatehabad, whereby while allowing the application filed by the prosecution under Section 311 Cr.P.C. at the stage of pronouncement of the judgment, has permitted it to re-examine MHC Om Parkash of Police Station, Ratia along with the record in order to prove the deposit of the case property at Police Station, Ratia.

2. In this case, the prosecution filed the aforesaid application under Section 311 Cr.P.C. when the arguments were heard and the case was posted for final judgment, at that stage, the prosecution want to summon MHC Om Parkash, Police Station, Ratia along with register No. 19 regarding entry of the deposit of the case property in case FIR No. 192 dated 26.2.2001 registered under the NDPS Act. It is submitted that the Investigating Officer-PW5 and another recovery witness PW4 had testified that a sample of 200 grams was taken from the poppy husk, which was recovered from the accused. However, PW6-MHC Om Parkash in his affidavit has given the weight of the parcel as 100 grams. It has been stated by the prosecution that in the affidavit filed by the MHC, it was by clerical mistake stated that the sample was of 100 grams and the said clerical mistake was somehow overlooked when the said affidavit was filed in the Court. In view of the said clerical mistake, the prosecution wants to recall the MHC along with the police record for showing that one of the sample, which was deposited with him, was 200 grams and the same was sent for chemical examination.

3. The aforesaid application has been allowed by the trial Court while observing that the evidence sought to be produced by the prosecution is required for just decision of the case. The said order has been challenged by the accused in this petition.

4. Learned Counsel for the petitioner submitted that the prosecution filed the aforesaid application at the belated stage when the case was posted for final judgment. At that stage, the trial Court was not competent to entertain such an application and allow the same. Learned Counsel further submitted that when the case is posted for judgment, the trial stands terminated and the power under Section 311 Cr.P.C. cannot be invoked which can be exercised only at any stage of the trial. Since the case was posted for final judgment, therefore, the trial stands terminated. Thus, the trial Court was having no power under Section 311 Cr.P.C. to permit the prosecution to lead the aforesaid evidence. In support of his contention, learned Counsel for the petitioner relied upon the decision of the Kerala High Court in Sajeendran v. Thalakulahoor Grama Panchayath, (Kerala) 2004(1) R.C.R. (Criminal) 611 in which it has been held that when a case is posted for judgment, the trial stands terminated and at that stage the trial Court has no jurisdiction to allow the prosecution to lead the evidence.

5. After hearing arguments of the learned Counsel for both the parties and going through the impugned order, I do not find any merit in the instant petition. The powers of the Court under Section 311 Cr.P.C. are very wide. It contains two parts. First part enables the Court at any stage of any inquiry, trial or other proceeding under the Code (i) to summon any person as a witness; (ii) to summon any person, who is in attendance, though not summoned as a witness, or to re-call and re-examine any person already examined. The second part enables the Court to summon, examine and recall or re-examine any person, if his evidence appears to be essential for just decision of the case. The first part of the Section gives a discretion to the Court and in the second part, it is obligatory on the Court to summon and examine or