M.R. Sharma, J.
1. The grievance made in the petition is that in a case Under Sections 148, 452, 354 and 506, I. P. C, in which the first information report had been lodged after 23 days, the learned trial Court has allowed the prosecution to lead further evidence for explaining the delay in lodging the first information report after the accused had examined their defence witnesses. Mr. Boparai appearing on behalf of the State of Punjab states that if the learned trial Magistrate comes to the conclusion that such evidence is essential for the just decision of the case, then it is incumbent upon him to summon this evidence. In support of this contention, reliance is placed on Jamatraj Kewalji v. State of Maharashtra : 1968CriLJ231 quoted in the judgment by the learned trial Magistrate.
2. There is no quarrel With the proposition of law laid down by their Lordships of the Supreme Court, but in most of the criminal cases the evidence led is of two types, namely, direct evidence and evidence relating to circumstance. Normally speaking, powers Under Section 311, Cr.PC can be properly exercised by a Court if from the evidence sought to be produced at the late stage a positive inference of the guilt of the accused can be drawn from such evidence. The fact whether a first information report has been recorded with delay or not is a matter of collateral type and only becomes relevant for properly appreciating the evidence of witnesses. It is settled law that even if a first information report is delayed, the Court cannot outright reject the ,evidence of the eye-witnesses. In such a situation, it is only called upon to scrutinise it with greater care and caution. [In this view of the matter, I hold that it would not be a proper exercise of the discretion Under Section 811, Criminal Procedure Code, on the part of a learned trial Magistrate to allow the evidence explaining the delay in lodging the report to be recorded after the accused have closed their defence especially when one of the witnesses who was to depose about this matter was cited in the calendar of witnesses and was later on given up by the Public Prosecutor. The petition is accordingly allowed and the order dated May 3. 1977, passed by the learned Judicial Magistrate 1st Class, Mansa, is set aside.