M.N. Bhandari, J. - (1.) BY this petition, a challenge is made to the order dated 10.12.2013. The application submitted by the prosecution was accepted. A revision petition against the said order by the petitioner was dismissed.
(2.) LEARNED counsel for petitioner submits that after registration of case, investigation was made by the CBI followed by charge sheet. After framing of charges, prosecution led evidence and by the time of submission of application, 22 witnesses had been examined. An application thereupon was submitted by the prosecution to allow them to produce certain documents without specifying and giving details of those documents and reasons for non -production at the appropriate stage. The application aforesaid was allowed affecting right of the petitioner. He has already disclosed his defence while cross -examining 22 witnesses, hence, it will affect his right of defence. The permission to take documents on record at a later stage can be permitted but not a stage when 22 witnesses have already been examined. In the light of the aforesaid, application submitted by the CBI was allowed casually. A revision petition thereupon was also dismissed. Therein, the order passed by trial court was found to be interlocutory in nature, yet holding revision petition to be not maintainable, it was decided on merit. The document and the material were produced, though it was not kept in proper seal. It can have repercussions adverse to the petitioner, thus impugned order be set aside with acceptance of the petition. A reference of judgment of this court in the case of Kanhaiya Lal v. State, reported in RCC Sept. 1987 is given. Therein, recalling of the witnesses was not accepted after hearing the case and keeping it for pronouncement of the judgment. In Para 2 of the said judgment, it was held that evidence should not be allowed to fill up the lacuna. Another judgment referred by learned counsel for petitioner is in the case of Mohanlal Shamji Soni v. Union of India & Anr., reported in : AIR 1991 SC 1346. Therein, application under Section 311 Cr.P.C. was accepted. The Apex Court held that an application can be accepted at any stage but it should not be with a view to permit new evidence or to fill up the lacuna left by the prosecution. In the light of judgments (supra), order be quashed.
(3.) PER contra, learned counsel for non -petitioner submits that application discloses the reasons as to why evidence could not be produced earlier. During the course of investigation, articles were sealed in the presence of two witnesses. A list was prepared but out of it, only item No. 2 of the list was submitted along with charge sheet leaving other articles. It was due to bona fide mistake. The witnesses to prove that material has yet to be examined by the prosecution, thus even if 22 witnesses have been examined, it is not going to affect defence of the petitioner. The witnesses concerned to the material would be examined now. The petitioner would be having opportunity to cross -examine them thoroughly. He further submits that application is not for acceptance of new evidence, rather it is part of investigation and was sealed in the presence of two persons. The doubt has been raised about condition of the evidence, though material has already been produced before the court below and is lying intact.;