IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44636 of 2009 KANHAIYA KUMAR Versus THE STATE OF BIHAR ----------- 2. 3.2.2010. Heard learned counsel Sri Satyendra Rai appearing for the petitioner and also heard the learned A.P.P. for the State on the renewal prayer for bail. The earlier prayer for bail of the petitioner was dismissed last by me on 16.9.2009, not on its merit but on account of the fact that the court wanted the petitioner to approach the lower court first so that the complete picture as regards the progress in the trial could be had by this court. The rejection order indicates, as if, it were the petitioner who were creating impediment in the disposal of the case. But the contention is that a petition under Section 311 of the Cr.P.C. was filed by the Public Prosecutor for examination of a few witnesses in addition to P.W.1 who was also to be cross-examined and that petition is still pending. It is contended that P.W.1 was also not turning up for her evidence in the case. The order subsequent to 6.11.2009 on which date the prayer for bail of the present - 2 - petitioner was dismissed by the learned trial Judge in Sessions Trial No.932 of 2007, has been produced before the court and it is indicated that by 19.1.2010 the position as stated above was constantly obtained in the court below. This court does not want to make any observations or issue any directions as regards the powers of the court within its wisdom under Section 311 of the Cr.P.C., but because no order was passed on the petition filed under that provision of law, the court expects the same to be heard and disposed of within a week of the receipt of the copy of the present order. While perusing the present records, I could come across that the fardbeyan of the deceased was recorded by S.I. Daud Kiro, who on 19.3.2003 was posted at Parbatta police station within the district of Bhagalpur. His examination appears necessary and all steps must be taken by the Superintendent of Police, Naugachia for locating Daud Kiro and prsenting him before the Additional Sessions Judge,3rd Naugachia in connection with Sessions Trial No.932 of 2007 for his evidence. For the guidance of the court below, it may be pointed - 3 - out that summoning a person for evidence under Section 311 of the Cr.P.C. may be a matter falling within the discretion of the court as may appear from the first part of the Section 311 of the Cr.P.C. but, as soon as the court had passed the order directing the examination of any witness whose evidence appears to it necessary for the just decision of the case, then it becomes mandatory for the court to ensure that the witness is produced and examined. If the court choses to act under Section 311 of the Cr.P.C. then it shall pass an order within the time frame as indicated above and send a copy of the same to the Superintendent of Police, Naugachhia with full description of the witnesses who shall ensure that the witnesses are produced within two months of receipt of that order before the trial Judge. Likewise, the Superintendent of Police, Naugachhia shall ensure that P.W.1 Munni Devi whose full details shall also be provided to him is also brought before the court without further delay even if the court has not issued any warrant of arrest for her apprehension and production. At any rate, the trial has to be - 4 - disposed of in a further period of four months from the date of production/receipt/copy of the present order. As regards the prayer for bail in the light of the observations, I have just recorded and in the light of the allegations, the same is dismissed in expectation that the time frame set down by this court is achieved by the court below, else the court below shall be submitting an explanation which shall be placed before the Hon’ble Inspecting Judge of the Judgeship of Bhagalpur. B.Kr. ( Dharnidhar Jha, J. )