Crl. Misc. No. M-35755 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-35755 of 2010 Date of Decision: December 8, 2010 Vijay Pal Singh …..Petitioner Vs. State of Punjab and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Avnish Mittal, Advocate for the petitioner. -.- M.M.S. BEDI, J. (ORAL) Petitioner is the complainant in FIR No. 76 of 2003 registered under Sections 419, 420, 467, 468, 471, 120-B IPC against Vimal Kumar Bansal, Ramesh Chander, Anil Kumar, Usha Rani and Saneh Lata. During the pendency of the trial, an application under Section 173 (8) Cr.P.C. was filed by the petitioner through the prosecution agency which was dismissed by the trial Court as well as by the revisional Court. The petitioner sought Crl. Misc. No. M-35755 of 2010 [2] the further investigation by examination of four witnesses, Bhupinder Singh, Amarjit Singh, Surinderpal and Rashpal Singh. The application was dismissed by the trial Court as well as by the revisional Court vide order dated July 16, 2007. Not satisfied with the orders passed by the trial Court and the Revisional Court, another application (annexure P-6) under Section 311 Cr.P.C. appears to have been filed by the petitioner for summoning PWs, whose names are not mentioned in the report under Section 173 (2) Cr.P.C. Counsel for the petitioner submits that the police has not fairly investigated the matter and intentionally not included the names of four witnesses mentioned in the application under Section 311 Cr.P.C. The trial Court vide order dated September 13, 2010 has dismissed the said application inter-alia on the ground that an application under Section 173 (8) Cr.P.C. has already been dismissed as such no permission can be granted to fill-in the lacuna in the criminal case in the garb of an application under Section 311 Cr.P.C. After going through the order passed by the trial Court as well as appreciating the arguments of counsel for the petitioner, I am of the opinion that an attempt is being made by the complainant to achieve indirectly which could not be achieved earlier by filing an application under Section 173 (8) Cr.P.C. Besides this, the FIR pertains to year 2003. The prosecution has not produced evidence despite the expiry of 6-7 years of trial. It is observed that filing of an application under Section 311 Cr.P.C. after an application under Section 173 (8) Cr.P.C. having been dismissed is Crl. Misc. No. M-35755 of 2010 [3] not a bar but before allowing an application under Section 311 Cr.P.C. it is a bounden duty of the Court to find out whether the examination of the witnesses is necessary for the just decision of the case. The provisions of Section 311 Cr.P.C. cannot be used by a Court to permit the prosecution agency to fill-in- lacuna and to cause prejudice to the accused. If the petitioner feels that the prosecution agency had been helping the influential accused, it was always open to the petitioner to seek his legal remedy by filing a private complaint against the accused by citing all the witnesses deemed appropriate by him. No ground is made out for interference. Dismissed. December 8, 2010 (M.M.S.BEDI) sanjay JUDGE