ORDER

1. The petitioner has filed this present petition under section 397 r/w 401 of the Code of Criminal Procedure [Section 438 r/w 442 of the Bhartiya Nagarik Surksha Sanhita (BNSS), 2023] being aggrieved by the order dated 12.8.2024 whereby the application filed by the prosecution under section 348 of the BNSS, 2023 has been allowed by the trial Court.

2. The petitioner is facing session trial under section 302 of the Indian Penal Code and section 25 and 27 of the Arms Act which is pending before the 6th Additional Sessions Judge, District Shajapur (MP). The final argument of the case were heard on 12.7.2024 and the trial was fixed for pronouncement of judgment on 20.07.2024. The prosecution filed an application under section 348 of the BNSS, 2023 seeking permission to recall the witnesss Dr. Sunil Kumar Soni (PW-21) and the Investigation Officer K.L.Dangi (PW-22) in order to exhibit the medical documents as well as FSL report which are already part of the charge-sheet. The application was opposed by the petitioner on the ground that all these documents were part of the charge-sheet and available at the time of examination of PW-21 and PW-22 but the prosecution for reasons best known to them did not exhibit the same and now lacuna cannot be fulfilled by recalling them. The learned Session Court allowed the application for reexamination of Dr. Sunil Kumar Jain for exhibiting the documents in respect of treatment of the deceased from 1.1.2019 to 6.1.2019 and reexamination of Investigation Officer K.L.Dangi. Hence, this petition before this Court.

3. Apart from the grounds raised before the trial Court, learned counsel for the petitioner submits that once the trial is terminated, the learned Judge cannot consider the application under section 311 of the Cr.P.C. (Section 348 of the BNSS) for summoning the witness for examination or reexamination. In support of his contention, learned counsel for the petitioner has placed passed by the Coordinate Bench of this Court (Gwalior) in case of Imrat Singh & Ors. v. State of M.P., 2015 Cri.L.J. 3473 . In the aforesaid judgment, the Coordinate Bench has considered the provisions of sections 311 and 353 of the Cr.P.C and held that under section 353 of the Cr.P.C., the judgment is pronounced immediately after termination of trial. Therefore, once the trial is terminated the application under section 311 cannot be allowed. In the present case, the trial was fixed for judgment on 20.7.2024. Therefore, the learned Session Judge has wrongly allowed the application.

4. The apex Court had occasion to consider the power of Court under section 311 of the Cr.P.C. in the case of P. Chhaganlal Daga v. M.Sanjay Shaw., (2003) 11 SCC 486 and held that the power to receive evidence in exercise of section 311 of the Code could be exercised "even if evidence on both sides is closed'' and such jurisdiction of the Court is dictated by the exigency of the situation and fair play. The only factor which should govern the Court in exercise of powers under section 311 should be whether such material is essential for the just decision of the case. Thereafter, recently in case of Satbir Singh v. State of Haryana & Ors., 2023 SCC Online 1086, the apex Court, after considering all the earlier judgments, came to the conclusion that section 311 of the Cr.P.C. should be invoked when it is essential for the just decision of the case and to meet the ends of justice. The Court has wide power under section 311 even recall the witnesses for re-examination or further examination necessary in the interest of justice after taking into consideration the facts and circumstances of each case. Recently, the coordinate Bench of this Court has also considered in the issue in case of Shankarlal & Anr. v. State of M.P., ILR 2023 MP 1052 .

5. So far as the contention of learned counsel for the petitioner that the trial Court is concluded as it is fixed for pronouncement of judgment. The five judges Bench of the apex Court in case of Sukhpa