IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.38710 of 2011 Arvind Kumar Versus The State Of Bihar & Anr ---------------------------------- 2 12.12.2011 Supplementary affidavit has been filed on behalf of the petitioner, taken on record. Heard learned counsel for the petitioner, learned A.P.P. as well as learned counsel for the O.P. No.2. The hitch arose on account of refusal of prayer by the learned court over admissibility of statement of deceased Kishore Josua. Admittedly, the statement of deceased is incorporated under para-25 of the case diary which the order of the learned court also contains. The aforesaid statement ought to have been proceeded with in accordance with Section 162 of the Cr.P.C. but the same was not availed by the respective parties at the proper stage of the trial. Now it happens to be defence stage at which, learned court was under obligation to proceed with the prayer raised on behalf of accused relating to calling for the document as well as compelling the attendance of the witnesses. As such, refusal of prayer of accused, when the document is already available as per para 25 of the case diary, certainly appears to be 2 contrary to spirit of Section 233 of the Cr.P.C. Accordingly, the order impugned is set aside. The Petition is allowed. The learned court is directed to take proper step in calling for the documents so prayed. Let a copy of this order be communicated to the court concerned by FAX at the cost of the petitioner. PN (Aditya Kumar Trivedi, J.)