ORDER :

GITA GOPI, J.

1. By way of this application, challenge has been given to the order dated 07.06.2024 of the learned 8^th District and Sessions Judge (Special ACB Court), Kutch-Bhuj in ACB Case No.9 of 2021. The learned Judge has passed the order below Exhibit 1, perusing the charge-sheet, the papers and the evidence filed before the Court. The learned Judge had read the deposition of PW2 recorded at Exhibit 16 and deposition of PW3 recorded at Exhibit 31 alongwith the document Exhibit 17 filed before the Court.

2. The learned Judge was of the opinion that neither the witnesses have taken care nor the Public Prosecutor had cared to perform their duty properly. Hence, the learned Judge took upon the duty considering the role of the Judge to not simply shut eyes and be a mute spectator, having noticed not to act like a robot or a recording machine to just deliver what stands feeded by the parties. Hence, on that principle as referred in the case of Munna Pandey v. State of Bihar 2023 LiveLaw (SC) 744 reported in 2024 (18) SCC 728, the learned Judge found that the depositions of PW2 and PW3 were not as per law and the prosecution has failed to bring proper deposition on record. Thus, considering the role of a vigilant Judicial Officer, the Court was of the view that it was the duty of the Court to know the reason for the defect in the deposition of PW2 and PW3 as well as the prosecution.

3. Further, the learned Judge held that the learned APP has not taken care to see those vital lapse in the trial and hence, the Court opined that it was the duty of the Court to use power to recall of witness given under Section 311 of the Code of Criminal Procedure, 1973 (in short as ‘Cr.P.C.’) and instead of passing a final judgment on the case, observing that there were some lapses made by both the Government servant more specifically, the Panch and the Police Inspector of the ACB, it was the duty of the Court to act judicially. Hence, the learned Judge ordered to issue summons under Section 311 of Cr.P.C. to PW2-Panch Witness and PW3-Trapping Officer for their further enquiry under Section 165 of the Indian Evidence Act, 1872 (in short ‘the Evidence Act’) by the Court.

4. Learned advocate Mr. Ashish Dagli submitted that the learned Judge had failed to understand the difference between the object behind the provision under Section 311 of Cr.P.C. and the power of the Judicial Officer under Section 165 of the Evidence Act. Mr. Dagli stated that to recall a witness and to examine as Court witness some specific reasons were required to be assigned for the recalled witness to know the lapse on their part while giving their testimony during the trial. Learned advocate Mr. Dagli was of the opinion that the learned Judge was required to disclose the questions which the Judge proposed to ask, as the witness has the right to deny the same in view of the provision of Section 165 of the Evidence Act.

5. Learned Additional Public Prosecutor stated the discretionary right of the trial Court Judge under Section 311 of the Cr.P.C. and Section 165 of the Evidence Act cannot be denied nor can be questioned. The witness has no other option but to follow them.

6. Section 311 of Cr.P.C. and Section 165 of the Evidence Act has been referred to invoke the power by the learned Judge, which are reproduced hereinbelow :-

Section 311 of Cr.P.C. :-

“311. Power to summon material witness, or examine person present :

Any Court may, at any stage of any inquiry, trial or other proceedings 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.”

Section 165 of the Evidence Act :-

“165. Judge's power to put questions or order production.

The judge may,in order to discover or to obtain proper proof of relevant fa