HARMOHINDER KAUR SANDHU, J. - (1.) ON 13th January 1990 case FIR No. 4 under Section 25 of the Arms Act for the recovery of 32 bore revolver from the possession of the petitioner was registered at Police Station Civil Lines, Amritsar. Challan against the petitioner was presented in court on 5.9.1991 and he was charge-sheeted on 19.9.1991. Thereafter numerous opportunities were granted to the prosecution to produce evidence. On 27.4.1993, 27.5.1993 and 2.7.1993 the case was adjourned directing the prosecution to produce evidence or its case would be closed. Still no evidence was produced except that Sub-Inspector Charan Dass was partly examined. Ultimately, the case of the prosecution was closed on 22.7.1993 vide order Annexure P-1 and statement of the petitioner was recorded. The case was then adjourned for defence evidence and arguments on 3.8.1993. On that day an application was moved by Assistant Public Prosecutor under Section 311 of the Code of Criminal Procedure for producing the Investigating Officer or cross-examination and other witnesses. This application was opposed by the petitioner but after hearing the counsel for the parties, the learned Judicial Magistrate Ist Class, Amritsar vide his order dated 14.8.1993 summoned Sub-Inspector Charan Dass for cross-examination by issuing bailable warrants. It is this order which is assailed by the petitioner by invoking the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure.
(2.) THE petitioner contended that prosecution was afforded 25 opportunities to produce evidence before its case was closed. The prosecution was not serious about adducing evidence. The impugned order Annexure P-4 summoning the prosecution witness negatives the order passed on 22.7.1993 closing the case of the prosecution. The prosecution could not be allowed to fill in the lacuna by resorting to the provisions of Section 311 of the Code of Criminal Procedure. I have heard the counsel for the parties. The learned counsel for the petitioner submitted that the case against the petitioner was registered on 13.1.1990 but challan against him was presented in court on 5.4.1991. Thereafter charge was framed and 25 opportunities were granted to the prosecution for production of evidence. On 2.7.1993 the prosecution was granted last opportunity to produce evidence, still no evidence was present and even the witness who was bound down did not appear or sent any intimation explaining his absence. The trial Court vide order Annexure P-1 observed that the prosecution was awarded last opportunity to produce evidence on 27.4.1993 and summons for effecting service of the witnesses were sent to the Senior Superintendent of Police, Amritsar through District and Sessions Judge, Amritsar but even the summons were not returned. In spite of the fact that last opportunity was granted to the prosecution, no evidence was present and it showed lack of interest in prosecuting the case. The petitioner had been regularly appearing in the court and there was no justification for subjecting him to further harassment. After closing of the case of the prosecution, statement of the petitioner was also recorded. It was thus urged that there was no further justification for summoning the Sub Inspector for examination and cross-examination when he did not care to attend the court in spite of the fact that he was bound down.
(3.) I have carefully considered the submission made by the learned counsel for the petitioner and find that the same is quite tenable. It is not a case where the prosecution was not afforded sufficient opportunity to produce its witnesses. The case was adjourned for 25 times and the petitioner had been appearing on all the hearings. The prosecution failed to produce its evidence and when on 22.7.1993 the case of the prosecution was closed no reason was given by the State as to why the witness who was bound down had not appeared. In the application Annexure P-2 even this fact was not mentioned that statement of Sub-Inspector Charan Dass was necessary for the just decision of the case. Undoubtedly the court has wide powers to summon any person as a witness or recall and re-examine any person already examined at any stage of enquiry trial or other proceedings if the interest of justice so requires but there is equally fundamental concept of criminal jurisprudence that the prosecution cannot be permitted to fill in the lacuna in its evidence by trying to examine the evidence after the case of the prosecution was closed by order. Earlier the case was adjourned many times affording occasion to the prosecution to produce its evidence, but the prosecution never took the matter seriously till its evidence was closed and the case was fixed for defence evidence and arguments. The trial court ordered the summoning of the witnesses only in the interest of justice but the phrase 'interest of justice' does not mean that the prosecution should not suffer for its negligence. Rather the court has to keep up balance and see that on necessary prejudice and harassment is caused to the accused also. After observing that there was no justification for further harassing the petitioner who had been attending the court for about 2 years and still no evidence was produced against him, it was not proper to order resummoning of the witness by issuing bailable warrants and the impugned order is, therefore, liable to be quashed.;