IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.49984 of 2007 BHOLA SHUKLA, Son of late Jharkhandi Prasad Shukla, R/o Sangrampur, P.S. Sangrampur, District Munger ……. Petitioner Versus 1. STATE OF BIHAR 2. The Branch Manager, State Bank of India, Motihari court Compound, Motihari ….. Opposite Parties ----------- For the petitioner : Mr. Radha Raman Verma, For the State : Mr. Binod Kumar, A.P.P. For O.P. No. 2 : Mr. K.K.Sinha, Advocate O R D E R The petitioner who is the sole accused in Motihari Town P.S. Case No. 91 of 1985 has prayed for the quashing of the order dated 19.9.2007 passed therein by Sri S.K.Srivastava, Judicial Magistrate, Motihari, by which he has allowed the petition of the prosecution filed under section 311 Cr.P.C. to bring on record certain documents and mark them as exhibits for a just decision in the case. The law on the issue remains well settled by the decision in Nesar Ahmed @ Nasser vs. The State of Bihar reported in 2007(1) PLJR 216 two paragraphs whereof are very relevant and requires to be quoted with approval. “Section 311 of Cr.P.C. consists of two parts i.e. (i)giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the 2 very width requires a corresponding caution - that the discretionary powers should be invoked as the exigencies of justice require, and exercised judicially with circumspection and consistently with the provisions of the Code. Therefore, this power has to be exercised in exceptional case or extraordinary situation. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case. What calls for pointed attention is the language of Section 311 of Cr.P.C. What the Section says is that the court may “summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine, any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case” (underling is mine for emphasis). Therefore, what Section 311 of Cr.P.C. talks of is the evidence of the witnesses and evidence would mean material evidence and does not include documentary evidence.” In the instant case while the case was at the stage of advancing arguments a petition under section 311 Cr.P.C. was filed on 7.6.2007 along with certain attested copies of documents for being marked as exhibits which purportedly were necessary for a just decision in the case and it was prayed by petition dated 18.7.2007 to recall P.W. 3, Shashidhar Prasad Sinha, who had been examined earlier by the Court on 17.2.2000, being fully 3 acquainted with the documents in question, to be recalled for proving the same. Admittedly P.W. 3, Shashidahr Prasad Sinha, had been examined as far back as on 17.2.2000 and the documents sought to be exhibited could well have been marked during his examination. The prosecution for the reasons best known to it having failed to do the necessary could not now come forward and by filing the documents at such a belated stage ask for recall of the witness to prove those documents. The documents where in the custody of the prosecutor bank and they could have presented the same before the Court when P.W. 3 was being examined. That not having been done efforts of the prosecutor to bring them on record at this belated stage could plainly amount to filling up lacunae in the prosecution case. If section 311 Cr.P.C. is to be construed in its true perspective, documents cannot be included within the ambit of section 311 Cr.P.C. In my opinion the learned Magistrate has erred in law, in view of the discussions made in the foregoing paragraphs, by allowing the prosecutor to prove the documents. As such the impugned order is required to be set aside which I do and allow the application. Patna High Court, Patna. Dated : The 21st of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)