IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50436 of 2007 RAJ NARAYAN PANDEY, S/O LATE BHAGALU PANDEY, RESIDENT OF MOHALLA-ATTAR DAH, WARD NO.28, P.S. SADAR, DISTRICT-MUZAFFARPUR………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. JHALO DEVI, W/O BINDESHWAR SAH. 3. SUNIL SAH, S/O BINDESHWAR SAH. 4. REKHA DEVI, D/O BINDESHWAR SAH. ALL RESIDENT OF MOHALLA-ATTARDAH, P.S. SADAR, DISTRICT-MUZAFFARPUR. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. K.N. Diwakar, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ---------- O R D E R The informant of Muzaffarpur(Sadar) P.S. Case No.202 of 2001 has prayed for the quashing of the order dated 19.7.2007 passed therein by Sri P.K. Saran, learned Sub-Divisional Judicial Magistrate, Muzaffarpur (East) whereby he has rejected the petitioner’s petition under Section 311 Cr.P.C.(wrongly described and typed in the application as Section 313 Cr.P.C.) as also the consequential order dated 20.9.2007 passed by Sri Hemant Kumar Srivastava, the learned Sessions Judge, Muzaffarpur, whereunder he has rejected Cr. Rev. No.169 of 2007 preferred by the informant impugning order dated 19.7.2007. The informant initially had filed Complaint Case No.2275 of 2001 alleging inter alia the commission of offences under Sections - 2 - 406, 420, 323, 380 and 504 I.P.C. at the hands of the three accused named in the complaint petition which on being transmitted to the concerned police station under Section 156 (3) Cr.P.C. the aforesaid police case came to be registered under Sections 406, 323, 379 and 504 I.P.C. and after due investigation, the police submitted a chargesheet against the accused only under Section 504 I.P.C. The three accused were put on trial wherein four witnesses on behalf of the prosecution were examined, the last of them on 29.9.2003 whereafter having afforded sufficient opportunity to the prosecution to produce its remaining witnesses, in the form of granting adjournments, and having waited till 18.8.2006, in course whereof no witness was sought to be produced by the prosecution, the prosecution evidence was closed eventually and the case was posted for recording of the statement of the accused under Section 313 Cr.P.C. However, in the meanwhile on 18.12.2006 two petitions were filed by the prosecution, one under Section 311 Cr.P.C. for examination of the informant who was on that day present in court and the other for framing of additional charges against the accused under Sections 323, 380 and 406 I.P.C. as these offences had apparently also been made out against the accused from the deposition of the witnesses. The two petitions, however, did not find any favour with the learned Magistrate who dismissed the same by his order dated 19.7.2007 and the Criminal Revision preferred thereagainst was also ceremoniously dismissed by a speaking order dated 20.9.2007. It has been submitted on behalf of the petitioner that on - 3 - 18.12.2006 the petitioner was present in court when the two petitions were filed but the court did not appear inclined to examine him when the law as propounded under Section 311 Cr.P.C. provides that for the interest of justice and for a just decision in the case the court under Section 311 Cr.P.C. can examine any witness present before it. It was also submitted that having heard the parties the court ought to have held that the interest of justice demanded, that the informant should be examined since it had not been shown to the court that in what manner the accused would be prejudiced by the examination of the informant nor it was shown how the examination of the informant would be an effort to fill up the lacuna. Grievance was also raised against the courts below wrongly exercising their discretion. I am not inclined to accept the submissions advanced by the learned counsel for the petitioner. It would appear from the impugned orders of the courts below that sufficient opportunity had been afforded to the prosecution in the form of granting adjournments to produce its remaining witnesses but notwithstanding a passage of almost 3 years the prosecution did not feel it necessary to produce the informant as a witness or for that matter any other witness of the prosecution for his examination in court. The reasons assigned by both the courts below for rejecting the prayer of the petition does not appear to be unwarranted in the circumstances, mentioned therein, and I fully uphold the same. Before me, no reasons have been assigned for the absence of the petitioner from the court for such a long time. Had reasons - 4 - been assigned for the non appearance of the informant, this Court may have been in a position to take a contrary view. In the absence of such reasons, it would not be proper for the court to come to another decision. The rejection of the prayer of the petitioner for framing additional charges against the accused persons has neither been pleaded in the instant application nor has any submission been advanced in this regard. Due regard being had to the facts and the circumstances of the case, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 10th of April, 2009. Pradeep Srivastava/A.F.R.