LABH SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) AN order dated 27th of September, 1984, passed by the Judicial Magistrate 1st Class, Sangrur, granting an opportunity to the State of Punjab, respondent in this case, to produce additional evidence under section 311, Code of Criminal Procedure (hereinafter referred to as the Code, has been assailed in this revision petition.

(2.) THE admitted facts are that the petitioner Labh Singh is being tried under section 61 of the Excise Act in the Court of Judicial Magistrate 1st Class, Sangrur. During the trial on 13th of September, 1984, the following order was passed by the trial Court : - "Present : A.P.P. for the State. Accused on bail with counsel. One P.W. recorded. No other P.W. is present. Summons not received back with any report about Mohinder Singh and S.I. Balbir Singh. It was last opportunity. No ground exists for further adjournment. Be put up on 15.9.1984 for statement of the accused." Subsequently, on 18th of September, 1984, an application under section 311 of the Code (Exhibit P 1), was filed on behalf of the prosecution seeking permission to produce, additional evidence. In pursuance of this application the impugned offer was passed by the trial Court permitting the prosecution to produce additional evidence.

(3.) THE contention on behalf of the petitioner is that without the fulfilment of the ingredients of section 311 of the Code, the prosecution has been allowed to produce additional evidence. There is evident merit in this contention. The aforementioned order dated 13th of September, 1984, shows that the trial Court after having given ample opportunity to the prosecution had closed its evidence. Section 311 of the Code lays down that any Court at any stage of the inquiry or trial may summon any witness if his evidence appears to it to be essential to the just decision of the case. In the instant case, the trial Court had itself closed the prosecution evidence on 13th of September, 1984. In the application under section 311 of the Code (annexure P1), it was not even pleaded that the additional evidence sought to be produced by the prosecution is essential to the just decision of the case. All that was asserted in this application was that one last opportunity be granted to the prosecution to produce the witnesses who were not earlier allowed to be examined when the prosecution evidence was closed by the trial Court on 13th of September, 1984. In the impugned order also her trial Court did not hold that the additional evidence sought to be produced by the prosecution is essential to the just decision of the case. It is, therefore, amply clear that the impugned order is in violation of the provisions of section 311 of the Code and it will only tantamount to allowing the prosecution to fill up the lacuna, which is not permissible.