S.C.Jain - (1.) THIS revision petition has been preferred by the applicant, Abdul Aziz, against judgment and order dated 23.5.1995 passed by Xth Addl. District Judge, Meerut in Sessions Trial No. 10 of 1989 under Sections 302, 394 and 411,I.P.C.
(2.) ON the basis of a complaint made by the applicant, Abdul Aziz a case under Sections 302, 394 and 411, I.P.C. was registered, which gave rise to Sessions Trial No. 10 of 1989, the proceedings of which were pending before Xth Addl. Sessions Judge, Meerut. The evidence of the prosecution and that of the defence had already been concluded and the case was ripe for arguments. In the meantime the applicant, Abdul Aziz, moved an application to recall the Investigating Officer, P.W. 6, for production of the weapon of the offence, i.e. Musali (iron-rod). The learned trial court after discussing the pros and cons of the matter dismissed that application by his order dated 23.5.95. In this revision that order passed by the trial court has been challenged, as mentioned above. According to the learned counsel for the applicant the learned trial court has mis-interpreted the provisions of Section 311 of the Code of Criminal Procedure. According to him the Investigating Officer stated in his statement that the weapon of the offence was recovered on the pointing out of accused and it was taken into custody vide recovery memo, but he did not produce that weapon of the offence to the prejudice of the case of prosecution. According to the learned counsel for the applicant application for recalling the witness under Section 311, Cr. P.C. was moved with permission of the Addl. Government Advocate (Criminal), who was conducting the trial of the case. Section 311, Cr. P.C. enables the court at any stage of any inquiry, trial or other proceeding under this Code to summon any person as a witness, or examine any person in attendance, though not summoned as a witness. This section is in two parts. The word used in the first part is 'may'. The first part gives purely discretionery authority to the criminal court to enable it at any stage of any inquiry, trial or other proceeding under this Code (a) to summon any person as a witness, (b) to examine any person in attendance, (c) to recall and reexamine any person already examined.
(3.) THIS Section 311 of the Code, no doubt, gives very wide discretion to the court to summon any person as a witness or examine any person in attendance or recall and re-examine any person already examined, but it is a judicial discretion which has to be exercised on the basis of tangible and concrete trial. In this case the Magistrate declined to accept the request of the complainant party to recall the Investigating Officer on the plea that existence of this weapon of offence was in the knowledge of the prosecution from the beginning but after considerable long time, i.e. about four years after when the case was concluded and fixed for arguments this application was moved. All the dates and facts have been mentioned by the learned trial court while declining to use discretion in this regard. The statement of the Investigating Officer whom the complainant wants to re-summon had concluded four years ago from the date of the application and that no good reasons found favour with the trial court for recalling him for that purpose. The discretion used by the trial court in declining to accept the request of the complainant cannot be said to be illegal and unjudicial. In the case of 'Pattda Ponappa Apachu v. State of Rajasthan' reported in 1985 Rajasthan LT 247, the request of this kind was declined by the court when it was made after a lapse of five years from the date of closure of the evidence. I find no illegality or infirmity in the impugned order and decline to interfere in revisional jurisdiction in this case. The power under Section 311, Cr. P.C. should not be exercised to fill up the lacuna in the prosecution case prejudicing the case of the accused.;