( 1 ) INSTANT application under section 482 Cr. P. C. has been moved by chhotey, resident of Mohalla Madhiya, Naka, police station Kotwali Nagar, district Banda, to set aside the order dated 30. 9. 2005 passed by learned Sessions Judge, Banda, in S. T. No. 254 of 2003, State Vs. Shobhit chaturvedi whereby application 186 Kha moved by the accused-applicant was rejected and objection 188 Kha filed by learned d. G. C. (criminal) against the application 186 kha was allowed. Application 186 Kha was moved to recall the order dated 26. 7. 2005 whereby the learned Sessions Judge suo motu directed PW 6 Siraj Ahmad, Investigating officer to be re-examined on some points.

( 2 ) HEARD Sri K. S. Tiwari, learned counsel for the applicant, learned AGA and have gone through the record.

( 3 ) THE fact of the case is that S. T. no. 254 of 2003, State v. Shobhit Chaturvedi is pending in the court of Sessions Judge, banda, under Section 302/34 I. P. C. police station Kotwali Nagar, Banda, against the accused persons including accused chhotey, applicant. After the case was committed to the Courtof Session, Prosecution examined its fact and formal witnesses. The statements of accused were recorded under section 313 Cr. P. C. The defence also closed its evidence and thereafter, the trial was fixed for argument. During the argument it was found by the learned Sessions Judge that report about the death of Awadhesh @ Pota was sent from the District Hospital, Banda, to the police station Kotwali, which was registered at G. D. Report No. 9 of 6. 8. 2003 at 8. 00 p. m The G. D. report was not proved by the prosecution. The learned Sessions Judge during the course of argument felt that examination of Investigating Officer Siraj ahmad, PW 6 was necessary. He also found that statement of constable concerned, who carried the information etc. was also necessary as perusal of GD in evidence was relevant for disposal of the trial. Therefore, he directed for reexamination of PW 6 Siraj ahmad, Investigating Officer, on this point and also the statement of the constable concerned. Aggrieved there from the applicant- accused moved application to recall the order dated 26. 7. 2005, which was opposed by the learned D. G. C (criminal ). After hearing the learned counsel for both the parties learned Sessions Judge rejected the prayer of the accused-applicant on 30. 9. 2005, therefore, instant application u/s. 482 cr. P. C. has been moved.

( 4 ) TWO fold objections have been raised by the learned counsel for the applicant. Firstly that at the verge of the conclusion of the trial the learned Sessions Judge was not entitled to summon the Investigating Officer again to get him reexamined on some points on which the prosecution has not examined him and the stage was over. The second argument of the learned counsel for the applicant was that even if proof of the G. D. be relevant, still it is to fill up the lacunae of the prosecution evidence, which cannot be done by the Court.

( 5 ) IN order to ascertain the facts of this case mention of some provisions of law is necessary.

( 6 ) SECTION 165 of Indian Evidence Act, 1872 provides as below :"165. Judges power to put questions or order production :- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant, and may order the production of any document or thing, and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. Provided that the judgment must be based upon facts declared by this Act be relevant, and duly proved. "

( 7 ) SECTION 311 of Cr. P. C. contemplates as below:"311 Power to summon material witness, or examine person present:- Any Court may, at any stage of inquiry, trial or other proceeding under t

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