IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16138 of 2009 SHRIDHAR NARAYAN TIWARY, SON OF LATE SRI NATH PRAPANNA CHARYA @ SHRIV NATH TIWARY, RESIDENT OF MOHALLA- DAHIYAWA BRAHMAN TOLA, P.S.- TOWN, DISTRICT- CHAPRA. ----- PETITIONER. Versus 1. THE STATE OF BIHAR. 2. DHANANJAY CHATURVEDI, SON OF SRI DWARIKA CHATURVEDI. 3. DHARMENDRA CHATURVEDI, SON OF SRI DWARIKA CHATURVEDI. BOTH RESIDENTS OF VILLAGE- ENAI, P.S.- REVELGANJ, DISTRICT- CHAPRA (SARAN). ----- OPPOSITE PARTIES. ----------- 2 14.7.2009 This application is against the order dated 9.4.2009 passed by the Additional Sessions Judge, Fast Track Court No. IV, Chapra by which he has allowed the State’s application to examine Shridhar Narayan Tiwary as witness in this case. The application for examining Shiwani Chaturvedi has been rejected. A prayer has also been made to recall the informant P.W. 8 Dharmendra Chaturvedi who is the informant of this case for re-examination. A First Information Report was instituted in which the petitioner who is the father of the deceased girl was a witness. A protest petition was also filed in this case but ultimately the case proceeded on the basis of the First Information Report and cognizance was taken in this case on the basis of the police report. 2 The reason mentioned by the State to recall the witnesses is that it is stated that they wish to examine the witnesses in the context of the protest petition which was filed by the informant. The Court below has rightly held that this cannot be allowed specially in view of the fact that the prosecution had full opportunity to examine and cross-examine the witnesses on this aspect of the matter during the trial of the case. Section 311 of the Code of Criminal Procedure gives the power to the Court for hearing the matter, recall or re-examination of any witness if the Court thinks that it is essential for the `just decision’ of the case but at the same time, the prosecution cannot use the provision under Section 311 of the Code of Criminal Procedure to fill in lacunae in their case. The object of Section 311 of the Code of Criminal Procedure is to test the veracity of the prosecution case in terms of what transpired during the investigation or what has been stated in the First Information Report. The protest petition is not even an 3 exhibit in this case and in the circumstances it cannot be used by the prosecution to prove or disprove the prosecution case. In the result I find that the order passed on 9.4.2009 does not suffer any infirmities and as such this application is dismissed. Sanjay (Sheema Ali Khan, J.)