ORDER

1. This is a petition under section 482 of the Code of Criminal Procedure being aggrieved by the order dated 9.1.2023 passed by Additional Sessions Judge, Alot, Dist. Ratlam in Sessions Trial No.05/2016 whereby the application filed under section 311 Cr.P.C. for recall of witness in Crime No.276/2015 by the respondent prosecution has been allowed.

2. The applicants are accused person in a complaint filed by Narsingh for commission of offences under sections 420, 467, 468, 471 IPC. The Magistrate had sent the same for investigation to the police.

3. Counsel for the applicants submits that after closure of evidence of prosecution witnesses twice and after recording the statement of accused under section 311, an application has been filed to produce handwriting expert and other documents and to recall investigation officer for evidence has been erroneously allowed. The said application ought to have been rejected by the trial Court as the same was filed by the prosecution to fill up the lacuna which is not permissible under the provisions of section 311 Cr.P.C. To bolster his submissions, he has placed reliance on an order dated 20.1.2016 passed in Cr.R. No.1626/2015 by Coordinate Bench in the case of Indrajeet Singh v. The State of M.P. wherein it has been held that the prosecution cannot be allowed to fill up the lacuna. In the said case, the prosecution moved an application to examine important witness Dr. N.K. Upadhyay, who could not be examined due to bona fide mistake. He also placed reliance on a judgment passed by High Court of Bombay in Criminal Writ Petition No.418 of 1994 (B.D. Goel v. Ebrahim Haji Husen Sanghani & Ors.) decided on 23.06.2000 wherein it has been reiterated that after recording the statement of accused under section 313 Cr.P.C. the prosecution cannot file an application for recalling prosecution witness to fill up the lacuna. He also placed reliance on an order dated 13.7.2021 passed by Bombay High Court in Criminal Writ Petition No.1658 of 2021 (Nayna Rajan Guhagarkar v. State of Maharashtra) wherein the same law has been reiterated.

4. Per contra counsel for the State submitted that the handwriting expert report and certain important documents were lost in the police station and the same could be traced out only after the arguments and, therefore, the application under section 311 Cr.P.C. was filed to file the aforesaid documents and to recall investigating officer as a witness. There is no illegality in the order impugned as there was no endeavour to fill the lacuna and the said documents and evidence of investigating officer was essential to establish the case. Those documents were lost in the police station.

5. I have heard learned counsel for the parties in order to appreciate the rival submissions, it is apposite to reproduce the provisions of section 311 Cr.P.C. 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 examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

6. The nature and scope of section 311 has been examined by the apex Court in the case of Rajaram Prasad Yadav v. State of Bihar & Anr. , (2013) 14 SCC 461. The apex Court explained and laid down the principles to be followed by Courts. The Court further explained and enumerated in detail and held that such power can be exercised at any stage as per principles elaborately stated in para 14. The relevant para 14 reads as under:-

A conspicuous reading of section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or reexamine a n y witness already examined. A r