K. K. ADHIKARI, J.

( 1 ) THIS revision is directed against the order dated 11-2-1984 whereby the trial court allowed the application made on behalf of the prosecution, under sections 207 read with section 311 of the Criminal Procedure Code, 1973 for recalling the complainant, Rajkumar Khatri (P. W. 1) who has in his testimony deposed that prior to lodging of the first information report at the police station Gorakhpur he had given a written report about the incident at the aforesaid Police Station stating there in the names of the process server and the other persons present on the spot during the incident.

( 2 ) SHORTLY stated, the facts of the case are that the complainant, Raj Kumar khatri (P. W. 1) had obtained a decree of eviction against the accused Kumar Oberai who was residing as a tenant in his house. It further appears that on 14-10-1981 in the morning, the process server went to the spot to deliver possession of the tenanted premises to the complainant/land-lord. The complainant went along with the process-server and others to take the possession. The accused resisted to delivery possession during which abuses were hurled and it is alleged that the accused caused injuries to the complainant with knife. According to the testimony of Raj Kumar Khatri (P. W. 1), after incident, the process server called the Police by phone and he wrote on the warrant of possession that he could not obtain the possession of the premises. According to his testimony, the Police had arrived on the spot, though he is not aware of the names of the police personnel. This witness had further stated that thereafter, he went to the Police station to lodge the report. The first information report lodged by the complainant is Ex. p. 1. The report was lodged at 8. 55 a. m.

( 3 ) AFTER due investigation the accused was prosecuted for offence under sections 186 and 326 of the Penal Code. The complainant, Rajkumar Khatri (PW. l) was examined on 18-3-1983 and during his cross examination he testified that prior to the lodging of the report Ex. P-i, he had given a written report which contained the names of process server and the witnesses at the Police station. It is this written report which by the impugned order has been allowed to be taken on record and in order to prove the lame, the complainant whose evidence was closed on 15-7-1983, has been recalled.

( 4 ) THE learned counsel for the applicant submitted that grave prejudice would be caused if the said written report is allowed to be taken on record and proved by the prosecution particularly when the copy of the same was neither furnished to the applicant nor a mention of it has been made in the first information report. It was also pointed out that even in the statement recorded by the police of the complainant during the investigation, no reference of any such written report has been made by Raj Kumar Khatri (PW. 1 ). It was further argued that the prosecution cannot be allowed to introduce facts in order to fill in the lacuna.

( 5 ) THE learned Panel Advocate for the state, however, contended that no prejudice can be said to be caused to the applicant as the applicant would have the opportunity of cross examining the complainant and the investigating officer who is yet to be examined by the prosecution. According to the learned counsel this revision is premature. Shri R. P. Chopra appeared for the complainant and was heard. According to the learned counsel, the prosecution has a right to tender evidence, both oral and documentary, at any stage of the trial. The learned counsel placed reliance reshantilal and others.

( 6 ) HAVING heard the arguments advanced on behalf of the parties and persued the records, in my opinion, there appears to be no bar for the prosecution to tender evidence, both oral or documentary. The provision of section 242 of the Criminal Procedure Code specifically provides for such an eventuality. It is further to be noted that the evidence of the prosecution has not yet be

Click Here to Read the rest of this document