IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.759 of 2009 MADAN KUMAR Versus STATE OF BIHAR & ORS 2 30.6.2010 Heard counsel for the petitioner and the State. The petitioner prays for issuance of writ in the nature of prohibition, prohibiting the court below from further proceeding in Sessions Trial No.467 of 2007, arising out of Complaint Case No.1928(C) of 2005, pending in the court of the Additional District & Sessions Judge, F.T.C., Banka. It appears that while the petitioner was posted as a teacher in Ghusri Primary School, P.S. Fulli Dumar, District Banka and was also holding additional charge of the Principal of the School, one Ranjit Kumar Yadav, a constable, along with his brother came and asked for half of the food grains which was kept in the school for the children under Mid-day Meal Scheme. On refusal by the petitioner, they threatened him with dire consequences upon which the petitioner filed an application before the Officer Incharge, Fulli Dumar P.S. on 20.4.2005, on the basis of which F.I.R. was lodged being Fulli Dumar P.S.Case No.58 of 2005 under sections 323, 332, 353,386/34 of the Penal Code. When the accused persons came to the learn about the filing of the aforesaid case, they began to pressurize the petitioner which led him to file an application in the court of the S.D.M. Banka on 30.10.2005. The police after investigation, filed charge sheet against the accused persons. However, the accused persons in order to wreak vengeance had set up an 2 imposter by the name of one Manju Devi who filed a complaint case against the petitioner bearing Complaint Case No.1928(C) of 2005. Learned counsel for the petitioner submits that the petitioner has moved for anticipatory bail before this court in Cr.Misc.No.39334 of 2006 stating therein that no such lady by the name of Manju Devi resides at the address given in the complaint. This court by order dated 25.9.2006 called for a report from the Superintendent of Police, Naugachia as to whether any person of the name of Manju Devi wife of Mahesh Mandal resides at Village Bhawnipur within Naugachia Police Station. In pursuance of the order of this court, the Superintendent of Police vide his memo no.3480 dated 9.12.2006 reported that no such person by the name of Manju Devi resides at the address given in the complaint. In view of the aforesaid fact, this court by order dated 31.1.2007 granted anticipatory bail to the petitioner. Learned counsel submits that on the aforesaid facts, the trial court, in seisin of the case, should first make an enquiry whether any persons by the name of Manju Devi resides at the address given in the complaint or not. In support of his contention he relied upon a decision of the Hon’ble Apex Court in the case of Zahira Habibullah Sheikh and another Vs State of Gujarat and others, reported in (2004)4 SCC 158, the case commonly came to be known as the “Best Bakery Case”, wherein in paragraph 39 it has been held as follows: 3 KHAN “39.Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial”. Section 311 Cr.P.C. gives ample power to 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 if his evidence appears to it to be essential to the just decision of the case. In such circumstances, if the court has any doubt regarding the genuineness of the person regarding his/her identity, it can summon further witnesses for finding the truth and doing justice in the matter. Having considered the facts and circumstances of the case, this court observes that if such an application is filed on behalf of the defence or even the prosecution, the court may consider the desirability of summoning the complainant or any other witnesses for its satisfaction. With the aforesaid observations this writ petition stands disposed of. (S.P.Singh,J) 4