The court emphasized the court's jurisdiction to call for evidence vital to a just decision, even if presented at a late stage by the prosecution.

JUDGMENT :

AMOL RATTAN SINGH, J.

1. By this petition, the petitioner challenges the order of the learned trial Court (Sub-Judge, Moga), dated 16.12.2016, by which an application filed by the prosecution under Section 311 of the Cr.P.C., seeking to tender the Chemical Examiners' Report, has been allowed.

2. The contention on behalf of the petitioner, while opposing the application before that Court (as well as before this Court), is that the application has been allowed at a stage when even the petitioners' statement under Section 313 Cr.P.C. has been recorded, and therefore also well after evidence of the prosecution was closed, which was a lacuna that was sought to be filled by the prosecution at too belated a stage.

3. The learned Special Judge however held that though undoubtedly the application had been filed at a very belated stage when the case was fixed for "defence evidence if any" and for arguments, yet, as the document was essential for the Court to reach a conclusion in the case, jurisdiction under Section 311 could be exercised to allow such evidence to be tendered.

4. Mr. Manaise, learned counsel for the petitioner, argued before this Court that the charge against the petitioner under Section 22 of the NDPS Act, 1985, was framed on 05.01.2013, with the trial thereby initiated; but for more than 3= years the prosecution did not conclude its evidence, despite various "last opportunities" given to it.

He submitted that evidence of the prosecution was eventually closed vide an order dated 14.10.2016 (copy Annexure P-2), a perusal of which reveals that 27 effective opportunities had been granted (to the prosecution) to conclude its evidence.

He also referred to 'zimini'/interim orders passed by the trial Court between 16.08.2016 till 12.12.2016, to drive home the point that a large number of opportunities had been granted to the prosecution to conclude its evidence, which not having been concluded even 3= years later, it had finally been closed vide the aforesaid order dated 14.10.2016 (Annexure P-2).

5. Learned counsel therefore submitted that the prosecution evidence having been closed "by order", firstly, such closure was never challenged; and secondly, producing the Chemical Examiners' report after the petitioner had disclosed his 'defence', was highly uncalled for, as it would prejudice his case.

He further submitted that in fact even written arguments had been submitted by the petitioner on 05.11.2016, taking therein a plea that the FSL report had not been produced and only thereafter the report was sought to be placed on record by the prosecution, on an application filed under Section 311 Cr.P.C., on 03.12.2016.

6. In support of his argument that evidence cannot be allowed to be led at such a belated stage, when even the statement of the accused under Section 313 Cr.P.C. has been recorded, he relied upon a judgment of two co-ordinate Benches of this Court, in Budh Ram vs. State of Punjab, 1996 2 RCR(Cri) 270, and Narinder Singh vs. State of Punjab and others, 2011 5 RCR(Cri) 563.

In the former case, the prosecution had filed an application about 04 days after the statement of the accused was recorded under Section 313 Cr.P.C. (in a trial for the alleged commission of an offence punishable under Section 302 of the IPC).

This Court had held that the application seeking to recall the witness had been typed on 09.05.1995, much prior to the date when the prosecution evidence was closed, with the accused called upon to enter their defence after recording their statements under Section 313 Cr.P.C. However, the application was actually filed thereafter, on 14.07.1995.

Consequently, citing from a judgment of the Supreme Court in Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, 1979 AIR(SC) 677, it was held that recalling of the witness after the accused had already disclosed their evidence, amounts to serious prejudice being cause to them. Hence, the order of the learned trial Court, allowing the application seeking to recall the wit