IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1347 of 2008 SK. JAHIR R/O VILLAGE-GADHWA, P.S.- MAJHAULIA, DISTRICT- WEST CHAMPARAN………………………………..PETITIONER Versus 1. STATE OF BIHAR 2. MAINA DEVI W/O LATE KAILASH PASWAN, R/O VILLAGE- BATHANA, P.S.- MAJHAULIYA, DISTRICT- WEST CHAMPARAN………………………OPP. PARTIES. For the petitioner : Mr. Aditya Nath Jha. For the State : Mr. Jharkhandi Upadhyay,APP. 2 19-07-2010 Heard both sides. Petitioner, who is facing accusations under section 302/34 I.P.C. in Sessions Trial No. 310 of 2006 is aggrieved by order dated 12-11-2008 passed by the learned Fast Track Court-III, at Bettiah, West Champaran, whereby the application filed by him on 26-06-2008 under section 311 of the Code of Criminal Procedure (for short the ‘Code’) has been considered and rejected. Relevant facts leading to the present application may be indicated with relevant brevity. A dispute arose on 15-09-2008 between Harendra koiri and Sk. Jahir on the price of mutton. The husband of the informant (P.W.-7) went to pacify the same It has been alleged that Harendra Koiri at the instigation of Sk. Jahir (petitioner)gave a knife blow in the chest of husband of the informant causing his death. The Trial was taken up wherein as many as seven witnesses were examined. On 27-06-2008 the appearance of the informant (P.W.7) was filed. She was examined in chief and on the request of defence cross-examination of P.W. 7 was deferred till 3:00 2 P.M.. After recession the Court found that no counsel had turned up for cross-examination of the said witness till 3:20 P.M. Accordingly she was discharged. On the same day (later) counsel representing the petitioner filed an application under section 311 Cr.P.C (Annexure-1) requesting the Court to recall P.W. 7 for cross-examination. Since the copy was not served on the learned A.P.P., he was directed to serve a copy upon the learned A.P.P. The matter was adjourned and taken up on 16-08-2008 when no witness was produced for examination. The Presiding Officer was on leave. Learned A.P.P. also filed application for adjournment. The matter was adjourned to be taken up on 12-11-2008. On that date the application filed by the petitioner as duly served on A.P.P. was pressed. Learned Court below rejected the same. Learned counsel for the petitioner submits that for the fault of the lawyer the accused cannot be put to prejudice of such nature. P.W. 7 is the informant. Her cross-examination is necessary for coming to a just conclusion at the trial. The scope of section 311 has been incorporated in the Code to take care of such situation. Admittedly the prosecution has yet to examine two more witnesses namely the doctor and I.O.. It is his contention that, learned trial Court has not considered as to whether non cross-examination of the informant shall cause prejudice to the case of the petitioner and shall obstruct the court in coming to a just conclusion at the trial. Learned counsel relied on a judgment of the Supreme Court rendered in the case of Rama Paswan and others v. State of Jharkhand 2007 (3) P.L.J.R. 63 (S.C.). Paragraph 6 and 7 of the report delineate the 3 ambit of section 311 which are quoted herein below :- “6. The scope and ambit of Section 311 of the Code, which reads as follows, needs to be noted: “311. Power to summon material witness, or examine person present.- Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in as a witness, or examine any person in a attendance, through 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.” 7. The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary enabling provision, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.” 4 On a consideration of the scope of the aforesaid section it has been observed that the determining factor for invocation of the power is whether it is essential to arrive at a just decision of the case. Learned A.P.P. on going through the impugned order and pleadings made in the application states that in the fairness of the trial petitioner may be afforded one opportunity to cross- examine P.W. 7. I have considered the submissions and gone through the materials on record. As seen above, the scope and ambit of section 311 is wide enough. Point to be kept in focus is the ends of justice which is coming to a just conclusion at the trial. As held by the Supreme Court, power under section 311 Cr.P.C. can be invoked by re-summoning a witness where examination or cross-examination would be relevant and necessary in coming to a just decision in the case. This aspect of the matter was not considered by learned trial Court. At this stage, learned counsel for the petitioner states that he shall deposit the cost incurred in summoning the witness and he further assures this Court that on the date she appears for her cross examination the same shall be made and the said P.W. 7 shall be discharged. This Court finds from the submission made on behalf of the petitioner and the materials available on record that the prosecution evidence has not been closed as there are two official witnesses yet to be examined. Having regard to these circumstances and the fair stand taken by learned A.P.P. the present application is disposed of with the following directions: Petitioner shall approach the Trial Court within three 5 weeks from today with the copy of this order and deposit a sum of Rs. 250/- as the cost of the witness. On such deposit, learned Trial Court shall summon P.W. 7 (Maina Devi) and will fix a date for her re-examination. It will be the duty of petitioner to complete the cross-examination on the date P.W. 7 appears for her re- examination/cross-examination. Cost so deposited by the petitioner shall be reimbursed to the witnesses (P.W. 7) on that date. It is clarified that the order dated 12-11-2008 shall not come in the way of the Trial Court in re-summoning the witness (P.W. 7, Maina Devi). Application is disposed of. S.P. (Kishore K. Mandal, J.)