Section 311 of the Code of Criminal Procedure allows the court to invoke its inherent powers at any stage, so long as it retains seisin of the criminal proceedings, to ensure a just decision of the case.

G.D. Saxena, J.

1. This petition under Section 482 of the Code of Criminal Procedure 1973 is directed against an order dated 25th August 2010, passed in Sessions Case No. 284/2005 by the 5th Additional Sessions Judge Morena, rejecting thereby the applicaton under Section 311 of Code of Criminal Procedure for re-calling a witness Jayanti Prasad (PW-4), father of the deceased for his cross examination, on the subsequent discovered document with a view to establish the defence by the accused.

2. The facts in brief, just for the decision of this petition are that within seven years of marriage of the deceased Radha with Raju, she died of an unnatural death, by taking some poisonous substance. It is alleged that after marriage of the deceased, her husband and other relatives on matrimonial side used to harass and torture her for their illegal demand of dowry. On the fateful night, her husband and relatives compelled the deceased to drink some poisonous substance. Consequently, after the death of deceased, an FIR was lodged against her husband, father-in-law, elder uncle-in-law, elder brother-in-law, and younger brother-in-law etc. After prosecution evidence and recording the statements of accused, the invitation card of marriage of younger brother of the deceased was discovered by the accused, therefore, with intend to prove their defence that after marriage of deceased Radha with Raju (Accused), the marriage of Pradeep, younger brother of the deceased was solemnized, the accused-Petitioner wants to recall the said witness for his cross-examination on the material point. It is stated that in the marriage of her brother, the ornaments worn by the deceased Radha were taken by her parents which were not returned to her,despite her repeated requests but the same were gifted to the wife of Pradeep. This was the sole reason that she committed suicide and in order to save themselves a false case was registered against the accused-persons by her parents. Therefore, by filing an application under Section 311 of Code of Criminal Procedure ., the accused requested the trial court to summon the said witness for his cross-examination to establish their defence, which prayer was rejected by the trial Court, hence this petition.

3. Learned Counsel for the Petitioner contended that the order of the trial Judge is perverse and not as per provisions of law. The accused have the right to prove their defence by adducing the evidence. The marriage invitation card of Pradeep, brother of deceased could be available to the accused subsequent to recording of statement of Jainti Prasad, father of deceased by the trial court. Hence, to prove the defence of the accused in the light of the marriage invitation card with some material questions in regard to the subsequent marriage of Pradeep and further to prove the fact that the ornaments of deceased Radha were gifted to wife of Pradeep, which being not returned to her, has resulted her death. Therefore, it is requested that by allowing the present petition, the learned trial court be directed to recall the witness Jayanti Prasad for his cross examination on the material particulars. Reliance is placed on the decision of the Apex court in the case of Mohan Lal Shyamji Soni v. Union of India AIR 1991 SC 1346and of this Court in the case of Heera Lal v. State of MP 1997 (1) JLJ 250

4. The leaned Penal Lawyer appearing for State/Respondent vehemently opposed the prayer and requested to reject the petition. It is contended that the defence had the ample opportunity to cross examine Jayanti Prasad, father of deceased and also put their defence to the witness. It is submitted that the accused should not be permitted to fill in lacunae in the prosecution case. Therefore, it is prayed for rejection of the petition seeking permission to recall the witness Jayanti Prasad for his further cross examination at subsequent stage of trial.

5. Heard the learned Counsel for the Petitioner and the learned Panel Lawyer for the Sta