Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.2019 of 2011 ====================================================== 1. Amirika Devi W/O Jagdish Yadav, R/O Vill-Kusmaul, P.S.-Marauna, Distt-Supaul .... .... Petitioner/s Versus 1. The State Of Bihar & Ors. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Suraj Narayan Yadav, Adv. For the Opposite Party/s : Mr. Gajendra Pd. Yadav, Adv. For the State : Mr. Ajay Kumar-I, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 09-10-2012 Heard the parties. In this case, a case has been lodged on the statement of Amirika Devi, informant that when she along with her other lady family members were harvesting the crop, at about 8.00 A.M. on the day of occurrence, accused persons named in the FIR came there with lethal weapon and started hurling abuses and asked them not to harvest the crop. On objection the accused persons assaulted them with weapons which caused injury to the family members of the informant. It appears from the order dated 10.8.2010 passed by the Additional Sessions Judge, Fast Tract Court-III, Supaul on an application filed [STATUTE] e that informant had no knowledge about movement of the case and as such, they could not remain present for giving their evidence. It has also been stated that they have not received any notice from the Court for their appearance and as such, the evidence for prosecution was closed due to their non-appearance. The said Patna High Court Cr.Misc. No.2019 of 2011 (5) dt.09-10-2012 2 / 3 2 order discloses that notices were issued to the informant and witnesses for their appearance but they did not choose to appear before the Court. In view of the statement made by the informant that they are ready to give their evidence in the case and they have stated on affidavit before this Court also, they could not appear before the court below on account of non-receipt of notices for their appearance. The Hon’ble Supreme Court in a case of U.T. of Dadra & Haveli v. Fatehsinh Mohansinh Chauhan reported in 2007 (1) PLJR SC 10 has observed that it is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. It has further been held that the second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. It has been emphasized that power is circumscribed by the principle that underlines Section 311 Cr.P.C., namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Further, that the power must be used judicially and not Patna High Court Cr.Misc. No.2019 of 2011 (5) dt.09-10-2012 3 / 3 3 capriciously or arbitrarily. It has further been observed that evidence should not be relieved as a disguise for a retrial or to change the nature of the case against either of the parties and the discretion of the Court must obviously be dictated by exigency of the situation and fair play and good sense appear to be the safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case.” In view of the judgement of Hon’ble Supreme Court the impugned order is set aside and the petitioner is directed to give her evidence before the court below. It is expected that the court below will be obliged to take her statement including the other supporting witnesses. However, the direction is also given to the prosecution/ petitioner to complete evidences within three months from the date of receipt/production of copy of this order. Accordingly, this petition is allowed. Mahesh/- (Shivaji Pandey, J)

Applicable IPC Section: 311

Statute Text:
Section 311 of the Indian Penal Code. OffencePunishment. Whoever is a thug, shall be punished with imprisonment for life, and shall also be liable to fine.