- (1.) THIS application under Section 482, Cr PC is directed against the impugned order dated 1.12.2003 passed in Case No. RC 3(A)/2000, whereby and where - under prayer of the opposite party for recall of seven witnesses for their re -examination and examination of twenty -four additional witnesses was allowed.
(2.) FACTS briefly stated are that a case was lodged against the petitioner -accused of RC Case No. 3 (A)/2000 for possessing property disproportionate to his known source of income and CBI officials after investigation submitted charge -sheet against the petitioner -accused and trial commenced. In course of trial, it is stated that seventy -one witnesses have so far been examined and trial was continuing when a petition under Section 311, Cr PC was filed. The prosecution made two prayers; first for recalling of seven witnesses already examined for their re -examination and another prayer for allowing prosecution to examine twenty four additional witnesses, list of which was placed for their examination and the learned Court below after hearing both the sides allowed both the prayers. The contention of the learned counsel for the petitioner is that though, the Court has every power under Section 311, Cr PC to examine, recall or do anything for securing ends of justice and in the instant case, the learned counsel for the petitioner has got no objection to recall of seven witness for their re -examination, who have already been examined, but so far as examination of twenty four additional witnesses not named in the charge -sheet nor their statements appearing in the case diary under Section 161, Cr PC is concerned, they should not be allowed because that will amount of filling up the lacuna of the case. The learned counsel, at the outset, submitted that he does not dispute the power of the Court to examine such witnesses but question is that such examination of witnesses should not be for filling up lacuna of the case, and the twenty four witnesses, who are sought to be examined by the prosecution, is definitely with a purpose to fill -up the lacuna of the case and that should not be allowed. In this connection, learned counsel referred to a number of decisions i.e. AIR 1999 SC 2292, wherein it has been held that mistakes or latches in conducting case by public prosecutor, re -examination of prosecution witnesses cannot be permitted merely for up lacuna in prosecution evidence. In 1984 East Cr C 719 (Pat) it has been held that jurisdiction conferred under Section 311, Cr PC cannot be used for filling up the lacuna in the prosecution case. It can only be exercised if the Court while hearing the case deems it fit and proper to examine some witnesses in the ends of justice and to appreciate the prosecution case and to clarify any doubt in its mind. It cannot be exercised in the aid of prosecutor. It was submitted that the examination of twenty four additional witnesses, sought to be examined and their statements have not been recorded under Section 161, Cr PC, is only for filling up the lacuna of the case and such prayer should not be allowed.
(3.) ON the other hand, learned counsel for the opposite party submitted that powers of Court under Section 311, Cr PC are unfettered and for ensuring ends of justice, such witnesses, in any stage of trial, can be examined and no limitation on power of Court arising from stage to which trial has reached, can be exercised provided Court is of bonafide opinion that for just decision of case, step must be taken. In this connection, reliance was placed upon AIR 1968 SC 178. Reliance was further placed upon AIR 1991 SC 1346, in which it has been held that recall and re -examination can be exercised at any stage of proceeding, provided examination of such person is essential for just decision of the case.;