The court emphasized that the power under Section 311 Cr.P.C. must be exercised judiciously to ensure a fair trial and should not be used merely to fill gaps in evidence.

JUDGMENT :

Manju Rani Chauhan, J.

1. Heard Mr. Rajeev Singh, Advocate holding brief of Mr. P.K. Singh, learned counsel for the applicant as well as Mr. Rizwan Ahmad, learned A.G.A. for the State and perused the record.

2. The present application has been filed assailing the order dated 16.06.2023 vide which the application under Section 311 Cr.P.C. as moved by the applicant for examination of P.W.-3 has been rejected.

3. Learned counsel for the applicant submits that the impugned order has been passed without application of judicial mind. During examination of P.W.-3 certain relevant questions which were important for proper adjudication of the matter could not be asked by the lawyer of the applicant, therefore, it would have been appropriate for the Court to allow the application permitting examination of P.W.-3. The order impugned has been passed in an illegal and arbitrary manner, therefore, the same may be set-aside.

4. Learned A.G.A for the State on the other hand submits that there is no illegality in the order dated 16.06.2023 as after detailed discussion and application of judicial mind, the order impugned has been passed. He further submits that the present application requesting for cross-examination of P.W.-3 has been given on 27.04.2023 that too after recording the statements of the witnesses as well as the accused under Section 313 I.P.C. and the matter has been fixed for hearing. From the records, the court concerned found that 15.04.2022 was the date fixed for recording the statements under Section 313 I.P.C. He further submits that the statements of accused Premanshu and Smt. Mithlesh were recorded and they were cross-examined. Three persons from the side of the accused were also examined. The cross-examination of the said witnesses from the side of the accused took place from the period 23.04.2022 till 27.08.2022. The accused persons stated that they do not want to produce any other witness for proving their case, therefore, the matter was fixed for hearing. On 22.12.2022 an application was given from the side of the accused for summoning P.W.-4 which was allowed and P.W.-4 was re-examined on 16.01.2023.

5. He further contends that nine witnesses have been produced from the side of the prosecution who have been examined and cross-examined by a number of lawyers from the side of the accused namely Om Narayan Dwivedi, Ashok Kumar Trivedi, Dinesh Kumar Pal, Anil Kumar Sachan and Siddharth Verma. Vakalatmama of Sri. Rambahal Vidyarthi was also found in the record of the case. The newly appointed lawyer Sri. Rambahal Vidyarthi moved an application on 27.04.2023 for summoning of P.W.-3 as certain important questions could not be asked from him at the time when he was examined. The court found that the chief examination of P.W.-3 Rambhawan took place on 31.05.2018 and he was cross-examined on the same date. The cross-examination continued on 04.07.2018 and was completed on the said date. The cross-examination is of about three pages. All questions regarding harassment of the deceased, the money as well as gifts which were given as tilak and other questions related to harassment were also asked from P.W.-3. From the aforestated, it is clear that the applicant is trying to linger on the case by changing the lawyer. Earlier also an application was moved for summoning P.W.-4 which was allowed and he has been re-examined.

6. I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application.

7. Before fathoming correctness of the submissions made by the learned counsel for the parties, it will be worthwhile to refer to Section 311 Cr.P.C., which reads as under:-

"311. Power to summon material witness, or examine person present:-. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already exami