S.C. Parija, J.
1. The petitioner has filed this application under Section 482, Cr. P.C. assailing the order dated 19-6-2003 passed by the Asstt. Sessions Judge, Keonjhar, in S.T. No. 57/154/2000, wherein the learned trial Court by invoking its power under Section 311, Cr. P.C. has directed summoning of witnesses to be examined as Court witness.
2. The main plea of Sri S. P. Mishra, learned senior counsel appearing for the petitioner is that when the witnesses for both the prosecution and defence had already been examined and the hearing had been closed and the matter had been posted for judgment, it was not open for the trial Court to resort to Section 311, Cr. P.C. for summoning witnesses to be examined as Court witness. It is further plea of the petitioner that such invocation of power under Section 311, Cr. P.C. to summon the remaining witnesses at the time of preparation of the judgment, only after noting certain lacuna in the prosecution case, is improper and illegal, as the Court cannot fill up the lacuna in the prosecution case by invoking the power under Section 311, Cr. P.C.
3. Since the petitioner has assailed the impugned order of the trial Court on the ground that exercise of power to summon witnesses to be examined as Court witness, after conclusion of the trial and hearing of the matter and when the same was posted for judgment, it is necessary to extract relevant portions of the impugned order which are as follows:
Accused persons are present. The case is posted to to-day for judgment. At the time of preparing judgment I found the prosecution has led half baked evidence which prompted me to invoke Section 311, Cr. P.C. Let me munify my reason. x x x
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The prosecution has examined the brother of the deceased, who appears to have been gained over. The prosecution declined to examine the aforesaid material witnesses for the reason best known to it. Had these witnesses been examined, the truth of real cause of the deceased would have been unfolded. That is why I have stated that the prosecution by leading half baked evidence conducted the case in a phlegmatic manner meaning thereby that there was an unfair trial. It is well settled that Criminal Court has ample power to summon any person as witness or recall or re-examine any such person even if the evidence of both the sides is closed and the jurisdiction of the Court obviously dictated by exigency of situation and fair play and good sense appear to be only safe guide and the only requirement of justice commands the examination of any person which would depend on the facts and circumstances of each cases. In the instant case the evidence of P.W. 4 clearly suggests that the death of the deceased was homicidal due to pressing of her neck and the injury available on her are ante-mortem in nature. Her death was within seven years of her marriage. The plea of the accused that she died on natural death belied medical evidence. In the facts situation the aforesaid material witnesses are essential to unfold the truth of the case. Therefore, by invoking Section 311, Cr. P.C. these witnesses be summoned as Court witnesses. Bench clerk is directed to issue summon to the witnesses to be examined as Court witnesses. Call on 30-6-2003 for further hearing.
4. In order to appreciate the pleading of the petitioner, it is beneficial to refer to Section 311, Cr. P.C. which is extracted below:
311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in a 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 in his evidence appears to it to be essential to the just decision of the case.