Kanta Bhatnagar, J.
1. In this petition under Section 482 of the Code of Criminal Procedure (here in after to be referred as 'the Code)' the petitioners have assailed the order dated June 3, 1985 passed by the Additional Sessions Judge, No. 1, Hanumangarh under Section 311 of the Code, as an abuse of the process of the Court.
2. A criminal case was, registered against the three petitioners and one Jagdish (discharged by the trial Court) at Police Station, Hanumangarh, on the basis of the information lodged by Palaram on July 3, 1982. The allegations were that Balwant Singh and Bhagwan Singh armed with 'gandasia' Jaspal Singh armed with 'darant' (sickle) and Jagdish armed with sword attacked him on July 3, 1982 and caused simple and grevious injuries to him with 'gandasi' and after sometime caused injuries with these weapons to his father Hans Raj which resulted in his death. The chargesheet against the three petitioners and one Jagdish was filed in the Court of Judicial Magistrate, Hanumangarh from where they were committed to stand their trial in the Court of Additional Sessions Judge, No. 1, Hanumangarh. By the order dated February 14, 1985, the learned Judge discharged Jagdish. Petitioner Jaspal Singh was chargesheeted under Sections 392, 326/34, 324/34; Bhagwan Singh under Sections 326, 324, 392/34 and Balwant Singh under Sections 326/34, 324/34 and 302/34 IPC and they were tried for these charges, Final arguments in the case were heard on May 27, 1985 and the case was adjourned to June 3,1985 for pronouncement of judgment. On that date, the learned Judge instead of pronouncing the judgment passed the order under Section 311 of the Code impugned in this petition before this Court.
3. By the aforesaid order under Section 311 of the Code two eye witnesses viz. Palaram (PW 2) and Premaram (PW 3) were ordered to be recalled to clarify whether 'gandasis' and 'darant' were used from blunt side or the sharp edged side by the three petitioners in causing injuries to Hansraj. As is evident from the impugned order, during the course of arguments defence counsel raised the point that the medical evidence is inconsistent with the statements of the eye witnesses Palaram and Premraj, because these two witnesses have stated about the three petitioners and Jagdish using sharp edged weapons whereas the Doctor conducting the postmortem examination of Hansraj has opined that none of the injuries found on the dead body was caused by a sharp edged weapon. The defence counsel placed reliance on the principle enunciated in the case of Hallu v. State of H.P wherein it was held that when a witness states about the sharp edged weapon being used then, unless he states about the blunt side of the weapon being used, there is no warrant for supposing that what the witness meant was that the blunt side of the weapon was used. The learned Judge in view of that decision and the medicial opinion in the case, observed that neither the Public Prosecutor in examination-in-chief of the witnesses nor the defence counsel in cross-examination, put any question, to get it clarified whether the weapons were used from the sharp edged side or blunt side by the assailants. The learned Judge, therefore, ordered for recalling eye witnesses Palaram and Premaram to clarify the position.
4. Another witness ordered to be recalled by that order in Umedsingh (PW 10), the Investigating Officer of the case. The person for feeling necessity of recalling that witness was that during the course of arguments, the defence counsel raised the point that if the nine pockets containing the articles recovered in the case were deposited is the Malkhana on July 4, 1982 as mentioned in the entry Ex. 2/7 of the Malkhana register, the prosecution case, that the 'gandasis' were recovered on July 29, 1982, after the arrest of Balwant Singh and Bhagwan Singh on July 25, 1982 and 'darant'was recovered on September 9, 1982 .after the arrest of Jaspal Singh on September 7, 1982, in pursuance of the information furnished by these 3 accused petitioners, stands faslified. The argument of the learned Public Prosecutor was that the weapons recovered must have been deposited in the Malkhana subsequently but the entry in the concerned register might have been made in continuation of the entries made in the register on July 4, 1982 without writing the date on which the weapons were deposited. The learned Judge felt the necessity to recall Umed Singh to clearify this petition and ordered accordingly.
5. Mr. M.L Garg, learned counsel for the petitioners strenuously contended that the learned trial Judge has exercised the powers under Section 311 of the Code in order to fill up lacunas in the prosecution case and not for the just decision of the case. Mr. Garg emphasised that in this case the exercise of the powers vested in the Court under Section 311 of the Code is not in accordance with the object of that section rather is an abuse of the process of the Court which is bound to prejudice the case of the petitioners.
6. Mr. Garg referred to the statement of Pala Ram where he had occasion to clarify the position and also to the order by which Jagdish was discharged, where this point had come before the Court and stressed that the whole process to recall the witnesses would be to bring the statements of the eye witnesses in line with the medical opinion which the Court should not have allowed. Regarding the Investigating Officer, the contention of Mr. Garg is that, when there is a specific evidence of Prithvi Raj regarding the SHO entrusting to him on July 4, 1982 nine pockets of the case and this making an entry to that effect in the Malkhana Register at Serial No. 417, there is no ambiguity regarding any clarification by Investigating Officer Umed Singh. That any version now given by the Investigating Officer would amount to take fresh evidence in the matter and not clarifying any ambiguity.
7. Mr. G.M. Bhandari, learned Public Prosecutor controverting the arguments of Mr. Garg, submitted that the powers of the Court under Section 311 of the Code are very wide and what the Court is to consider is whether re-calling or re-examining of the witness is essential to the just decision of the case. Mr. Bhandari stressed that the Court has power to exercise the power under Section 311 of the Code at any stage of the proceedings and as such the delay in re-calling the witneses would not affect the order.
8. Mr. Bhandari argued that unless the eye witnesses come and say that the weapons were used by the assailants from the blunt side, the prosecution case is likely to fail. That, if it is not clarified from the Investigating Officer that he had deposited the weapons recovered from the accused after their arrest and the entry in that regard on July 4, 1982 is not correct the recovery of the weapon may not be taken as a circumstance against the petitioners. Mr. Bhandari, stressed that this being the position of the case, the learned Judge had rightly passed the order Under Section 311 of the Code.
9. In order to appreciate the arguments of the learned counsel for the parties, to understand the object of the legislature behind the enactment of Section 311 of the Code and to arrive at a conclusion whether in the facts and circumstances of the case on hand, the Court was justified in exercising the powers vested in it by that section, it would to profitable to study the principles enunciated in the various authorities on the point referred to and relied on by the learned counsel for the parties. Section 311 of the Code reads 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 re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
10. The words "at any stage of any inquiry, trial or other proceeding!;, under Code", appearing in this section are of significance. By importing these words in the section, vast power has been vested in the Court. The trial of a case conclude with the pronouncement of the judgment. Hence there is no restriction on the Court to exercise the power under this section. The Court has power to re-call the witnesses if the circumstances of the case so warrant and the court feels satisfied that the recording of such evidence is essential to the joint decision of the case even after the case has been argued and the date has been fixed for the pronouncement of judgment. It is this principle which has been enunciated in the case of Ram Joshi v. The State wherein their Lordships
discussing the stage for exercise of power Under Section 540 of the Old Code corresponding to present Section 311 of the Code held that, for the purpose of Section 540 trial terminates with the pronouncement of the judgment or the charge to the Jury and so long as the judgment has not been pronounced or the Jury charged, the trial is not terminated."
11. In the case of Jemat Mal v. State of Maharashtra discussing the stage at which power Under Section 540 of the Old Code could be exercised their Lordships covered that Chapter 21 of Cr. PC does not restrict the powers of Criminal Court under Section 540. Section 540 Cr.PC and Section 165 Evidence Act, confer a wide discretion on the court to act as the exigencies of justice require. Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates.
12. On the same point reference may be made to the principal enuciated in the case of Shree Lal Rajoria v. The State
Discussing the stage at which exercise of power under Section 540 of the Old Code was permissible and also the circumstances in which it can be so used his Lordship propounded the principle that Section 540 is in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised or with regard to the manner in which they should be exercised. It was further observed that in fact there will be a failure of duty on the part of Court in not calling witnesses when once it comes to the conclusion that the examination of witnesees is necessary for the just decision of the case.
13. The position of law is that the Court has vast discretion to summon and examine witnesses under first part of Section 311 of the Code and and obligation to do and also to recall and reexamine a witness if his evidence appears to be essential to the just decision of the case. But it is also note wor-that despite the vast powers vested in the Courts they are expected to be very cautious in exercise of this power because of the possibility of one party being helped and the other party being prejudiced by the action of the Court. However, Courts are not to be guided by the fact that the exercise of powers under Section 311 of the Code would be helpful to the prosecution or to the accused or detrimental to the interest of either and has rather to see whether a step under this section is necessary to arrive at a just decision of the case for which the Court are meant.
14. The provisions of Section 311 of the Code with reference to the two parts of that section and the circumstances in which it is permissible for the Court to exercise the discretion under the first part of section and obligatory upon it to exercise the power under the accused part came for consideration in a number of cases which I would precently discuss.
15. In the case of Mangat Rai v. Emperor AIR 1928 Lah 647, it was held that the discretion given to Magistrate under Section 540 has to be exercised with a great deal of caution.
16. In Ram Jehi's case , it was held that the section is manifestly in two parts. The two parts of the section were interpreted in Jamatraj's case and it was held as
It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects ap The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time.
17. The object underlining Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses or examined from either side.
18. Before referring to the authorities on the the point dealing with the circumstances in which it may and may not be justiciable for the Court to exercise the powers under this section, it would be proper to discuss the circumstances of the present case in order to understand whether there was any occasion for the prosecution to clarify the points now sought to be clarified by the Court and whether the Court would be filling up the lacunas of the prosecution case and thereby prejudicing the interest of the petitioners without there being any justification for its doing so.
19. The case of the prosecution from the very beginning was that the three petitioners and Jagdish armed with 'gandasia'. 'dantra' and sword had caused injuries to Hansraj which resulted in his death. At the stage of charge, the post mortem examination report was before the Court when it passed the order dated February 14, 1985 by which Jagdish was discharged on the ground that there was no injury caused by sharp edged weapon on the dead body of Hansraj and the injury by a sword would always be by the sharp edged weapon. In the absence of any evidence that the sword was in the scabberd when used, the learned Judge was of the opinion that even a prima facie case is not made out against Jagdish and he was, therefore, discharged. At that time, the learned Judge observed that 'gandasia' and 'dantra' may also be used from the blunt side but the sword cannot be so used. In view of that observasion, the three petitioners Were charge-sheeted for the aforesaid offence and the trial procedeed. The State challenged the legality of the order of discharge of Jagdish by filling a revision petition in this Court which was dismissed on September 12, 1983.
20. The learned counsel for the petitioners submitted that even at the stage of charge the question as to whether the weapons could be used from the blunt side had come for consideration and prosecution should have kept that observation of the Court in view while examining eye witnesses Palaram and Premraj. The learned Judge has observed that neither in the examination-in-chief nor in cross-examination of the two witnesses attempt has been made to get it clarified as to from which side the weapons were used.
21. In Mallu's case AIR 1974 SC 1936 which has been referred during the course of final arguments in the trial Court, their Lordships, while observing that normally when a witness says that an axe or a appear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was urged, have held that if that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp edged or a piercing instrument was used as a blunt weapon.
22. While deciding the present petition I am not concerned as to what would be the effect of the statements of the witnesses as they stand at present, because it would be for the trial Court to decide on the point. All that is relevant for the present purpose is that it is the duty of the prosecution to get the clarification from the witnesses and not that of the defence. It is natural, and many a times beneficial for the defence, if the defence counsel does not take the risk of any fact being deposed against the defence in an attempt in cross examination to get clarified a fact which it was the duty and in the interest of the prosecution to do so.
23. Mr. Garg submitted that though it was not the duty of the defence to ask such a question to the prosecution witnesses, still there was an occasion for the witnesses to explain the position, He referred to the statement of Palaram where in the cross examination suggestions were made to him in support of the defence theory that Hansraj wanted to give a beating to Balwant Singh with a lathi when he was talking with Idan and at that time Balwant Singh inflicted blow with blunt side of the 'gandasi' to Hansraj. Mr. Garg submitted that there was occasion for the witness to state at that time that the weapons were used from the blunt side but not in the situation suggested to him. Be it as it may, failure on the part of the prosecution to bring the manner of the use of the weapons, from the statements of Palaram and Premaram, should not be a justification to get it now by exercise of power under Section 311 of the Code. The post mortem examination report was already there to show the nature of the injuries. Not only that, the Doctor whose evidence is said, to be inconsistent with the eye witnesses, had been examined as PW 1 in the case whereas Palaram has been examined as PW 2 and Premaram as PW 3. The fact of the injuries on the dead body of Hans Raj being caused by a particular type of weapon in a particular way having already come on record, the prosecution should have been cautious to examine Palaram and Premaram in that line. It is, therefore, not a case where a sudden unexpected argument might have been raised by the defence counsel for which the Court may recall the two eye witnesses to bring their statements in consistency with the statement of the Doctor. Raising an argument on the material on record does not amount to an ambiguity requiring clarification.
24. The third witness ordered to be recalled by the impugned order is Umed Singh, Investigating Officer. The learned Judge has observed that in Ex. P 7, relating to the depositing of the nine packets of the articles relating to the case in the Malkhana, the date July 4, 1982 is written which is inconsistent with the prosecution case that the articles were recovered subsequent to the arrest of the petitioners in pursuance of the information furnished by them on the dates falling much after the date of the entry in register on July 4, 1982.
25. Mr. Garg vehemently argued that the inconsistency now having been disclosed and the argument of the Public Prosecutor in the trial Court being that per-mistake the entries might have been made below the entries of July 4, 1982 and the subsequent date might not have been written the by Investigating Officer would take the clue for what he is to say to establish the prosecution case, in this respect. Mr. Bhandari did not dispute that this may be the probable explanation but his submission is that by such a statement of the Investigating Officer the ambiguity would be clarified. The apprehension of the petitioners that such a version would damage the case of the accused is not without foundation.
26. Mr. Bhandari justifying the order placed reliance on Mangat Rai's case AIR 1928 Lah 647 where after the defence was closed and the arguments heard, the Magistrate felt on the records as they stood, that some points had been left obscure and in order to elucidate them it was necessary to recall certain witnesses and to examine a new witness and when that evidence had been recorded, he took the precaution of asking the accused if he wanted to add anything to his previous statement and on his replying in the negative he heard further arguments and then proceeded to decide the case. It was held that there was no illegality in the procedure adopted nor had the petitioner been prejudiced in any way by it.
27. Mr. Bhandari argued that in the present case also questions regarding the version of the three witnesses may be asked to the petitioners and their reply taken in order to avoid the chances of prejudice to them. In the case just referred to the fact regarding which the witnesses were called under Section 540 of the Old Code had great relevancy. It was a case under Section 161 IPC relating to the allegation of receiving illegal gratification by the accused, a Head Clerk to the Officer-in-charge of the Animal Transport Section of the Indian Army Service Corps Record Office. Documentary evidence had important role in the decision of the case. For that reason, the learned Magistrate ordered to recall one witness Dost Mohammed to produce all correspondence he had at any time with the accused. Another witness Colonel Steelo was to bring all letters he received from Colonel Collins bearing on the case. The documentary evidence throwing light on the point was to be produced and proved by the witnesses so recalled because those documents were essential for the just decision of the case.
28. In the present case what is sought to be done is to corroborate the medical evidence by the eye witnesses and to have evidence from the Investigating Officer so that recovery alleged to have been made may fit in with the case of the prosecution case.
29. Another case relied on by Mr. Bhandari on this point is Jamat Raj v. State of Maharashtra . It was a case under Section 135(b) of the Customs Act, 1962. Two witnesses were examined, one of whom had stated that Mr. Dutta Inspector Customs, Bombay had told him the information he had received regarding the offence and that witness also admitted that it was Dutta who had decided as to which watches were to be seized and which were to be released. The name of Dutta was in the list of the witnesses but be was not examined initially. Application was filed by the prosecution for examination of Dutta as Court witness. The Magistrate examined Dutta under Section 540 of the Old Code. The accused was thereafter examined again and given an opportunity to lead defence evidence. In those circums tances, the High Court in appeal, rejected the contention of the accused that evidence of Dutta was improperly received by the Magistrate and should be excluded from consideration. The same objection was raised before the Supreme Court when the matter reached there in special appeal and it was held that the Court cannot be said to have exceeded its jurisdiction in acting under the second part of Section 540 of the Old Code. The clarification sought in that case was altogether of different nature than the one the Court in the present case intends to do. In Shree Lal Rajoria's case AIR 1964 Bom 165 while discussing the powers under Section 540 of the Old Code and making observation that the question whether or not, after the entire evidence is over, the Court should permit further evidence to be led will depend on the facts of each case and holding that it cannot be laid down as a general rule that in no case can an additional witness be called by the judge at the close of the trial after the case for the defence had been closed, his Lordship observed as under:
The judge has to exercise caution in using his powers under Section
540. Before using his powers, the judge has to take into account the circumstances and decide whether the course of examining witnesses after the entire case is closed would be so irregular that it may be injustice to the accused.
30. In the case of State v. A.O. Ramaswami AIR 1969 Mysore 22 the request of the prosecution to the Court to exercise power under Section 540 of the Old Code to issue summons to the Additional witness was rejected for the reason that prosecution was in possession of all the material on which it sought to establish the charges against the respondent and also because it was not disclosed in the application that the evidence sought to be proved was for the just decision of the case.
31. Mr. Garg took help from this case on the ground that in the instant case also the prosecution had all the material with it to examine the witnesses in that line and should have been vigilent that its failure to do so may create difficulty for it and. therefore, the Court should not have exercised the power under Section 311 of the Code to fill up the gaps left by the prosecution.
32. In the case of State v. B.B. Saxena 1972 RLW 465, the accused petitioner was charged of the offence punishable under Section 161 IPC read with Section 5(2)/5(1)(d) of the Prevention of Corruption Act, 1947 by the Special Judge. After the defence evidence was over and the arguments partially heard the Public Prosecutor prayed the Court to summon two witnesses and recall one under Section 540 of the Old Code. The learned Special Judge rejected the application on the ground that the prosecution by that application wanted to take second inning to plug the loop, holes of its case and lapses of cross-examination after having heard the defence case, which is far from bonafide. The matter came up before this Court in a revision petition filed by the State against that order. The petition was dismissed with following observations:
Without laying down that in no case can an additional witness be called by the judge at the close of the trial after the case for the defence has been closed. In this particular case the course that was adopted by the prosecution was irregular and was calculated to do injustice to the accused. The prosecution cannot be allowed to rebut the defence evidence unless the defence brings something suddenly and unexpectedly and that is not the situation here.
33. In that case, it was the prayer of the prosecution which was rejected. The powers of the courts are quite wide. Not only that, the second part of Section 311 of the Code enjoins upon the court to proceed under that section, if to do so is essential to the just decision of the case. But if the Court proceeds under that section to rebut the defence taken, it is not permissible.
34. In the case of Smt Santosh Kumari and Ors. v. State 1973 Cr.LJ 651, their Lordships of the High Court of Himachal Pradesh, in view of the facts and circumstances of the case; observed as under:
Where the prosecution did not care to take the elementary precaution of getting explained the discrepancy as to the dates which had a direct bearing upon the extra-judicial confession, an application under Section 540 in the High Court, for recalling the person before whom the confession was made, so as to clarify the discrepent statement cannot be allowed.
35. Mr. Garg in the light of the observations so made in that case, contended that the question of recalling the Investigating Officer to clarify the date falls in the same category and there is no justification in recalling him for the purpose.
36. In the case of T. Radheshyam v. State the document sought to be filed was in the possession of prosecution. The Magistrate allowed the application filed by the State to recall a witness for cross-examination for the purpose of marketing certain bills in the bill book wherein Exs. P/2 and P/3 had already been marked. The application was filed after the case was posted for judgment. The application was resisted by the accused on various grounds. The learned Magistrate allowed the application, When the matter went before the High Court at the instance of the accused-petitioner, the order of the lower Court was set aside for the reason that the witness was sought to be recalled for the purpose of taking corroborative evidence and also because there was ample opportunity for the prosecution to file that document even at the earliest opportunity. His Lordships observed that if this kind of petitions are allowed at each and every stage, either to take corroborative evidence or to let in rebutting evidence, there may not be an end to these matters which ultimately may prejudice the accused in a criminal trial. Such kind of permissions to either party under the guise of Section 540 will amount to enabling them to fill up the lacuna.
37. In the case of Piyra Singh and Ors. v. The State of Punjab 1978 Cr. LJ 221 after the accused closed their defence, the order, of the Magistrate allowing evidence for explaining the delay in lodging the FIR was held to be improper.
38. Mr. Bhandari referred to the case of Hardit Singh v. State of Punjab 1980 Cr. LJ (NOC) 106. In that case the accused, in a proceeding for commission of offence under Section 16 of the Prevention of Food Adulteration Act moved the High Court under Section 482 of the Code immediately after completion of the prosecution evidence for quashing the proceedings on the ground that. Public Analyst had only stated in his report that there were insects in the sample of food articles but not certified that the article of food had become unfit for human consumption and the Public Analyst was not examined by by the prosecution. His Lordships did not consider it proper to quash the proceedings for the reasons that Public Analyst in that case, even though not examined by the prosecution, could be examined by the trial Court under Section 311 of the Code. His Lordship held that the trial Court should be given a chance to arrive at a definite conclusion and it would not be in the interest of justice to quash the proceedings at the stage at which they stood,
39. The observations in that case do not help the prosecution in the present case because of the stage at which the order was sought to be quashed and also because of the peculiar circumstances of the case. There the Public Analyst had not been examined, the stage for proving the High Court was immediately after the completion of the prosecution evidence, and the report of the Public Analyst required clarification. In the instant case, the learned Judge has passed the order after the defence counsel raised certain points in the arguments and the prosecution had ample opportunity to examine the witness, ordered to be recalled, on the points they were to give evidence now.
40. In view of the above discussion of law on the point, in the light of the facts and circumstances of the case on hand, I am inclined to hold that it was not only unnecessary, rather improper for the learned Magistrate to recall the three witnesses. Hence the exercise of power under Section 311 of the Code cannot be said to be in accordance with the intention of the legislature in enacting the later part of Section 311 of the Code.
41. While exercising power under Section 311 of the Code be discretionary under First Part I or obligatory under second Part of that section, the Court is not to be guided by the fact that by the exercising power, case of prosecution or the accused would be damaged. What it has to see is whether it is essential to the just decision of the case. It may be observed that just decision does not amount to lead to certain conviction or certain acquittal. True it is that the legislature has not intimated the limits of the power and thereby left the scope of the section very wide. However, the order to be passed under this section being a judicial act should be passed on sound principles of justice and equity. When a particular provision vests unbri-dilled power in the Court, then prudent thinking, cautious acting and sense of equity are the safeguards against the exercise of that power. The power under Section 311 of the Code falling under this category it should be exercised only in suitable cases when the exigencies of the situation impell the Court to proceed under that section.
42. It is pertinent to note that in the present case out of the three witnesses to be recalled through the impugned order, to viz. Palaram and Premaram are the real sons of the deceased and Umed Singh is the Investigating Officer. All the three may be said to be interested in the success of the prosecution case. Mr. Garg emphatically argued that from the order itself it is clear as to what these witnesses are to say when produced in the witness-box, and they being out and out in favour of the prosecution would naturally state, what is helpful to the prosecution. That, when the answers to the questions put to them would be put in their mouth, there would be no question of any clarification of any ambiguity by them.
43. Mr. Bhandari could not meet this argument and even did not dispute the possibility of the witnesses stating in a way which may rebout the points raised by the dependent's counsel in the final arguments advanced in the Trial Court. In such situation, recalling the witnesses would amount to filling up the gap or removing the lacuna of the prosecution case and indirectly helping the prosecution to correct the mistake committed by it in not examining the witnesses properly despite there being opportunity and material with it to do so. I am alive of the principle that powers under Section 311 of the Code can be, and in appropriate cases should be exercised by the Court at any stage of the enquiry or trial and that the trial is not complete, till the pronouncement of the judgment. However, in the peculiar circumstances of this case discussed above, 1 am constrained to hold that there was no exigency of circumstances which may justify the impugned order passed by the trial Court under Section 311 of the Code. It is, however, made clear that by such observation it is not meant that the Court should not have passed this order because it may help one side and damage the case of the other. I have rather arrived at this finding simply for the reason that recalling these three witnesses in the given circumstances of the case cannot be said to be essential to the just decision of the case.
44. In view of the above discussion, in order to prevent the abuse of the process of the Court, it is considered just and proper to quash the impugned order dated June 3, 1985 passed by the learned Additional Sessions Judge No. 1, Hanumangarh.
45. Consequently, the petition under Section 482 of the Code is allowed. The impugned order dated June 3, 1985 passed by the learned Additional Sessions Judge No. 1. Hanumangarh is quashed. The learned Judge shall proceed with the case on the record, uninfluenced by any discussion in this order touching the merits of the case.