O R D E R

(31.03.2021)

This petition under Section 482 of the Cr.P.C. has been filed by the petitioners challenging the order dated 25.01.2021 passed by JMFC, Balaghat, District-Balaghat in RCT No.1984/2006 whereby the learned JMFC has allowed the application filed by the State under Sections 91 and 311 of the Cr.P.C.

2. According to case, the petitioners are facing a trial of above-said case number for the offence punishable under Section 420/34 of IPC wherein vide order dated 12.04.2017, the learned JMFC has closed the right of prosecution to produce the evidence. On 05.02.2019, the State has submitted an application under Sections 91 and 311 of Cr.P.C. requesting to call the witnesses, namely, B.P. Tiwari (Investigating Officer), Mubark Ali (T.I. who filed the charge-sheet), Shiv Kumar (Seizure witness) and also to call the report of Handwriting Expert from police headquarter, Bhopal.

3. By passing the impugned order, the learned JMFC has considered the prayer of State to the extent of calling the witness B.P. Tiwari and report of Handwriting Expert. Being aggrieved by the order passed by the JMFC Balaghat, the petitioners have approached this Court by way of filing the instant petition.

4. Learned counsel for the petitioners submits that the learned trial Court erred in allowing the application under Sections 91 and 311 Cr.P.C. whereas the trial Court itself closed the right of prosecution to produce the evidence on account of long delay. He submits that the summons were issued in relation to aforesaid witnesses but they did not appear before the Court and therefore, the right to produce the evidence of prosecution has been closed by the trial Court and this fact has been suppressed by the prosecution while filing the application. The order passed by the trial Court is amount to review of earlier order passed by JMFC of closing the right to produce the evidence, of the prosecution, which is not permissible under the Criminal Law. He further submits that as per Section 91 of Cr.P.C., a police officer or a Court considers that the production of any documents or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings, the police officer or such Court may issue an order or a summons to the person in whose possession or power, such documents or things is believed to be. Here in the case, the documents which production is desired by the prosecution, belongs to prosecution itself and for which application under Section 91 of Cr.P.C. would not be maintainable. It is well settled principle of law that aid of Section 91 and 311 of Cr.P.C. cannot be used to fill up the lacunas. With the aforesaid, he prays to allow the instant petition. 5. On the other hand, learned counsel for the respondent/State opposes the petition submitting that an opportunity of fair trial is soul of criminal justice system. The learned JMFC has rightly exercised his discretion allowing the application of State for calling the witnesses and production of documents. He submits that the evidence of abovenamed witnesses are necessary for fair adjudication of the case. The trial Court has also found that only the evidence of witness B.P. Tiwari is necessary to be produced before the Court, hence, the trial Court has discarded the prayer of State in relation to other witnesses. As far as arguments in relation to Section 91 of Cr.P.C. is concerned, the learned P.L. submits that on 13.10.2006, the concerning S.P. has sent a letter to provide the Handwriting Expert report but same has not been received and therefore, the order of Court under Section 91 of Cr.P.C. is necessary to be passed in the case because the report is important piece of evidence and necessary for fair adjudication of the case. With the aforesaid, he prays for dismissal of this petition.

6. Heard both the parties.

7. Before adverting to the facts of the case, it would be appropriate to read the relevant provision of Sections 91 and 311 Cr.P.C. whi