V.S. Dave, J.
1. This petition is directed against the order of learned Sessions, Bhilwara, dated 27-6-1990 whereby he has recalled the witness Hajari P.W. 1 for eliciting some more facts pertaining to the accused from him. It is relevant to mention here in this that witness Hajari P.W. 1 was initially examined on 25-9-1989. He is a solitary eyewitness in the case. There after at the instance of the Public Prosecutor he was ordered to be re-called and on 8-3-1990 his statement was recorded Under Section 311 Cr. PC. The case was posted for argument on 5-4-1990 and thereafter for dictation of order on 7-6-1990. It appears from the order, dated 7-6-1990, the Photostat copy of which has been placed on the record, that the learned Judge started dictating the judgment but for paucity of time it could not be completed on that day Next day when he was to complete the judgment learned Judge got busy in some other case and did not complete the judgment. Since he was on leave from 9 June to 20 June, 1990 he posted the case for completion of jugement on 22-6-1990 & on this date he mentioned that he wants to re-hear the arguments and posted the case on 22-6-1990. Thereafter it was adjourned to 25-6-1990 and vide impugned order he re-called the witness Hajari who had already been examined in the past. Learned Judge also rejected the bail application of the accused by this very order. Sequence of the orders indicates that the case has been taken very lightly and without proper application of mind by the learned Sessions Judge, particularly when the accused was in jail the witness was examined as stated above on 25-3-1989 and the learned Sessions Judge read the entire record before passing any order on application Under Section 311 Cr. PC and re-examined him on 8 3-90, possibly third order, dated 7-6-90 could not have been passed. Section 311 Cr.P.C is not enacted by the Legislature for filing up the gay left by the prosecution or suo moto by the court to elicit the facts which otherwise have not been brought on record by the prosecution or the defence. The court has not to act as Investigating Agency by recalling the witness in the manner it has been done. It is true that the court has unbriddle power to re-summon or. call the witness before conclusion of the trial but that discretion has to be sound Judicial discretion and thus judicial act must be based on sound judicial principles and not acting as prosecutors or persecutors. I am fortified in view by the decision of this court reported in 1986 RLW 112.
2. Before, conclude, I would like to observe that the handling of this case has not left happy impression on my mind in as much as when the learned Sessions Judge bad bead the arguments on 4-6-1990 and proceeded to dictate the judgment on 7-6-1990 on the following day instead of taking other case, he ought to have completed the judgment left incomplete on the previous day. Giving a gap of almost 3 weeks for completion of the judgment is not way of functioning judiciously.
3. The result is that the petition is allowed and the order dated 27-6-1990 of learned Sessions Judge, Bhilwara is set aside the learned Sessions Judge shall hear the arguments afresh and decide the case forthwith.