PANWAR, J. - (1.) BY this petition under Section 482 Cr. P. C. accused petitioner challenged the order dated 4. 4. 2001 passed by the learned District and Sessions Judge, Jaisalmer, in Sessions Case No. 36/99 whereby the application filed by the learned Additional Public Prosecutor for summoning the Tehsildar, Pokaran as prosecution witness was allowed and Tehsildar Pokaran was summoned as prosecution witness.
(2.) BRIEFLY stated the facts which are necessary to dispose of this petition are that the accused petitioner is facing trial before the learned Trial Court for the offence under Sections 302, 394, 323/34 and 324 I. P. C. After investigation, police laid challan against the petitioner and prosecution examined prosecution witnesses. The case of the prosecution is that on 14. 2. 99 injured Murli Manohar was admitted to Pokaran Hospital and his statement was recorded by the Tehsildar, Pokaran. Subsequently, injured Murli Manohar succumbed to injuries sustained on 14. 2. 99 in the hands of the accused petitioner. The copy of the statement was supplied to the accused petitioner along with the charge sheet but due to inadvertance Tehsildar Pokaran was not cited as witness in the calender of witnesses. However, when the case came up for final arguments on 23 March 2001. On this date i. e. 23. 3. 2001 learned Additional Public Prosecutor appearing before the Trial Court filed an application under Section 311 and 242 Cr. P. C. stating therein that on 14. 2. 99 statement of injured Murli Manohar was recorded in Pokaran Hospital by the then Tehsildar, Pokaran. Copies of those statements have already been supplied to the accused but due to inadvertantly the name of the then Tehsildar, Pokaran was not mentioned in the calender of list of witnesses. It was further mentioned that he is material witness. Similarly on 19. 7. 99 the statement of injured Murli Manohar was recorded by H. C. Ali Khan. Copies of whose statements have also been supplied to the accused. It was mentioned in the said application that Murli Manohar died of due to the injuries caused and as such requested the learned trial court to summon these above-named persons as prosecution witnesses. By the order impugned dated 4. 4. 2001, the learned Trial Court partly allowed the application dated 23. 3. 2001 filed by the prosecution and directed to summon the then Tehsildar, Pokaran as a prosecution witness and prosecution's request for summoning Ali Khan Head Constable was rejected. Being aggrieved of the order impugned, the accused petitioner filed this application under Section 482 Cr. P. C. I have heard learned counsel for the petitioner and the learned Public Prosecutor. It was contended by the learned counsel for the petitioner that the purpose of moving such an application was for filing up the lacuna in the prosecution case at the final stage of arguments of the case. He further contended that the learned Trial Court has committed error in calling the then Tehsildar, Pokaran as a prosecution witness. On the other hand, learned Public Prosecutor supported the order impugned.
(3.) SECTION 311 Cr. P. C. of 1973 categorically lays down that any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as 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. Thus, it is clear that under SECTION 311 of Cr. P. C. , the Court has got wide power to summon any person as witness at any stage of inquiry and trial and as such, there is no limitation of power conferred on Court, but it is well settled law that Court should not allow a particular person as witness in order to fill up the lacuna left by it. The Court must exercise this power with due care and diligence. Learned counsel for the petitioner relied on the judgment of this Court in Balwant Singh and others vs. State (1 ). In that case, after closure of the arguments at the stage of final argument, prosecution sought permission and prosecution witness was recalled by the Trial Court to explain whether weapon was used by sharp edged side or blunt side. This Court quashed the order of such recall. He further relied on the judgment of Hon'ble Supreme Court in Meer Mohammed Umar and others vs. State of W. B. (2) In that case witness was sought to be recalled to make correction and correct his statement and Hon'ble Supreme Court held that section is not intended to permit witness to resile from his statement in the name of correction. The facts of present case are totally different. In the instant case, deceased Murli Manohar alleged to have sustain injuries in the hands of the accused petitioner and he was immediately taken to hospital at Pokaran where the Tehsildar Pokaran recorded his statement as Executive Magistrate. Subsequently, Murli Manohar died and after investigation police laid challan against the accused petitioner. The copy of the statement of deceased recorded by the Tehsildar Pokaran was also annexed with the challan papers and supplied to the accused petitioner. Inadvertantly name of the then Tehsildar Pokaran could not be mentioned in the list of witnesses. The petitioner knows right from the beginning that statement of deceased Murli Manohar was recorded by the then Tehsildar Pokaran and with this knowledge accused went on trial and, therefore, it cannot be said that by summoning Tehsildar as a prosecution witness, petitioner can said to be brought to surprise. In the instant case, the explanation offered by the prosecution not having examined the then Tehsildar Pokaran as prosecution witness before closer of prosecution evidence is that due to inadvertance his name could not be mentioned in the calender of witnesses filed along with charge sheet. Thus, after examining the prosecution witnesses as per calender of list of witnesses submitted by it, the prosecution closed its evidence. It was only when case was finally argued, it revealed that due to inadvertance the above named material witness could not be examined and as such at that stage the then Tehsildar Pokaran was sought to be examined on behalf of the prosecution. From the facts narrated hereinabove, it is obvious that calling of witness the then Tehsildar Pokara was neither malafide nor a design to fill up the lacuna in prosecution case. ;