IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.24937 of 2011 Ram Bilash Yadav, son of Late Yugeshwar Yadav, resident of village-Shyampur, Police Station-Bahera (Alinagar), District-Darbhanga. …………………………………………………….Petitioner. Versus The State Of Bihar ………………………Opposite Party. ---------------------------------- For the Petitioner: Mr. Gajendra Kumar Jha, Advocate. For the State : Mr. Hirday Prasad Singh, A.P.P. ----------------------------------- O R D E R 5. 15.11.2011. This application, under Section 482 of the Code of Criminal Procedure, has been filed for quashing the order dated 28.5.2011 passed in Criminal Revision No.101 of 2011 by the Sessions Judge, Darbhanga, dismissing the aforesaid Criminal Revision, as preferred by the petitioner and other two accused against the order dated 15.3.2011 passed by the Sub Divisional Judicial Magistrate, Benipur, in T.R. No.338 of 2011/G.R. Case No.332 of 2008, rejecting the prayer of the accused persons including the petitioner under Section 311 of the Code of Criminal Procedure to recall the witness, P.W.6, 2 Leela Devi, for her cross examination. 2. In brief, the facts, leading to this application, are that on the basis of the written report of the informant, Leela Devi, the co-villager of the petitioner, Bahera P.S. Case No.331 of 2008 was instituted under Sections 341, 323, 354, 379 and 504/34 of the Indian Penal Code against the three accused persons including the petitioner. On investigation, the police submitted the chargesheet in the court of A.C.J.M., Benipur, finding the case to be true under Sections 341, 323, 504 and 354/34 of the Indian Penal Code. Accordingly, the A.C.J.M., Benipur took the cognizance of the offence on 23.1.2009 under the aforesaid Sections and transferred the record to the file of the Court of the Sub Divisional Judicial Magistrate, Benipur and, thereafter, the trial was commenced. Till 28.6.2010, five witnesses were examined on behalf of the prosecution and next date was fixed as 22.7.2010 for evidence of the rest of the prosecution witnesses but none witness was produced on behalf of the prosecution, hence, the next date was fixed as 21.8.2010. On the said date, a representation on behalf of the accused persons including the petitioner was filed under Section 317 of the Code of 3 Criminal Procedure, which was allowed by the trial court but on that date, one witness, namely, Leela Devi, the informant, was produced on behalf of the prosecution for her examination and her examination-in-chief was recorded but due to non appearance of the defence counsel, this witness was discharged without cross examination. Thereafter, dates were fixed for evidence of the prosecution witnesses and, ultimately, on 7.1.2011 the prosecution evidence was closed and record was fixed for statement of the accused including the petitioner on 28.1.2011. Thereafter, on inquiry, the accused including the petitioner came to know that the informant, Leela Devi, was already examined on behalf of the prosecution on 21.8.2010, but she could not be cross examined due to non appearance of their counsel. Hence, on 28.1.2011, a petition was filed on behalf of the accused including the petitioner under Section 311 of the Code of Criminal Procedure to recall the witness, P.W.6, Leela Devi, the informant, for cross examination and the same was rejected by the Sub Divisional Judicial Magistrate, Benipur, on 15.3.2011. Being aggrieved and dissatisfied with the 4 aforesaid order dated 15.3.2011 passed by the Sub Divisional Judicial Magistrate, Benipur, the accused persons including the petitioner preferred the Criminal Revision, numbered as Criminal Revision No.101 of 2011, in the court of the Sessions Judge, Darbhanga, who dismissed the aforesaid Criminal Revision vide order dated 28.5.2011, which is impugned in the present application. 3. Learned counsel appearing on behalf of the petitioner submitted that there is no deliberate latches on the part of the accused including the petitioner for non cross examining the P.W.6, Leela Devi, as the accused including the petitioner on 21.8.2010 were on representation under Section 317 of the Code of Criminal Procedure and the counsel of the accused could not appear on that date for cross examination of the witness but the learned trial court did not consider the same and illegally rejected the prayer of the accused to recall the P.W.6, Leela Devi, for cross examination in the interest of justice. It has also been submitted on behalf of the petitioner that the purpose of filing the application under Section 311 of the Code of Criminal Procedure is not to 5 fill up the lacuna rather to secure the ends of justice as in case of non cross examination of P.W.6, the accused including the petitioner will be prejudiced. 4. From the order sheets of the trial court as annexed as Annexure-‘3’ to this application, it appears that on 21.8.2010, a representation petition under Section 317 of the Code of Criminal Procedure was filed on behalf of all the three accused including the petitioner, which was allowed by the trial court and on that very date, the prosecution produced the witness, Leela Devi, P.W.6, who is the informant of this case, for examination and her examination in-chief was recorded but in spite of several calls, non appeared on behalf of the accused including the petitioner, hence, she could not be cross examined. It also appears from the order dated 28.5.2011 passed in Criminal Revision No.101 of 2011 that the Sessions Judge, Darbhanga, has dismissed the Criminal Revision preferred by the accused including the petitioner against the order dated 15.3.2011 passed by the Sub Divisional Judicial Magistrate, Benipur, rejecting the application of the accused filed under Section 311 of the Code of Criminal Procedure to recall the witness, P.W.6, 6 Leela Devi, for cross examination, with observation that the prayer of the accused can be taken cared of under Section 254 of the Code of Criminal Procedure. 5. On bare reading of Section 311 of the Code of Criminal Procedure, it is apparent that the discretion has been cast by the legislature on the court to 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 in the interest of justice. In the present case, admittedly, P.W.6, Leela Devi, who is the informant of the case, was produced by the prosecution for examination on 21.8.2010 and on that date, the accused including the petitioner were allowed to represent through their lawyer under Section 317 of the Code of Criminal Procedure. Hence, due to non appearance of accused counsel, she could not be cross examined. In the present case, the cross examination of P.W.6, Leela Devi, the informant, appears to be essential in the interest of justice and for just decision of the case. 6. Accordingly, the impugned dated 28.5.2011 passed in Criminal Revision No.101 of 2011 by the 7 Sessions Judge, Darbhanga, is hereby quashed and the application is allowed. The trial court is directed to summon the P.W.6, Leela Devi, for her cross examination by the defence, preferably, within a period of two months from the date of receipt of a copy of this order on payment of cost of Rs.1000/- by the accused- petitioner. P.S. (Rajendra Kumar Mishra, J)