IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.38780 OF 2009 1. MD.NAYEEM AKHTAR, SON OF MD. ABDOOL GAFFOR 2. MD. AKHATAR, SON OF MD. ABDOOL GAFFOR 3. MD. CHHEDI, SON OF MD. ABDOOL GAFFOR 4. MD. SERAJ, SON OF SUBHANI 5. ABBAS, SON OF HALIM 6. SAHABJAN, SON OF CHHATHOO ALL RESIDENT OF VILLAGE KOTHIA, POLICE STATION KHAJAUL, DISTRICT MADHUBANI ……………………………………………………………………….PETITIONERS VERSUS THE STATE OF BIHAR ************ 2 30/11/2009 Heard learned Counsel for the petitioners and the A.P.P. appearing on behalf of the State. This application has been filed against the order dated 14.09.2009 by which the Court below has allowed the application under Section 311 of the Code of Criminal Procedure. Learned Counsel for the petitioners submits that the application filed under Section 311 of the Code of Criminal Procedure has been made after great delay inasmuch as the application was filed while arguments of the case were in progress. The prosecution has filed an application that they may be permitted to examine the doctor who is required to prove the injury reports. This is a case of rioting under Section 302/307 of the Indian Penal Code in which there are 52 accused persons. In a case under Section 307 or for that 2 matter, under Section 302 of the Indian Penal Code, the doctor is an important witness who needs to be examined to prove the injuries/postmortem reports. Section 311 of the Code of Criminal Procedure provides that “the Court may summon any person as a witness or examine any person in attendance though not summoned as a witness or recalled and re-examine any person already examined if it appears essential to the just decision of the case. In this case, the Court has allowed the application of the prosecution to summon the doctor as a witness to examine and to prove the injury reports. In the circumstances, I do not think that the prayer of the prosecution is such which would prejudice the petitioners as they would get the opportunity to cross-examine the doctor. The plea that the prosecution is trying to fill in the lacuna of the case by summoning the doctor, cannot be considered by this Court as non- examination of the doctor in a case of murder or attempt to murder is not a lacuna rather it is essential for substantiating the case of the prosecution and can help in reaching the truth. Learned Counsel for the petitioners referred to a judgment in the case of Keshav Choudhary & Others vs. The State of Bihar, reported in 2000 (3) PLJR 220. In 3 that case, the Court has held that the power under Section 311 cannot be used for filling the lacuna in the prosecution case. There can be no denying the proposition laid down by this Court or by the Supreme Court in many such cases. But in the present case, I do not think that the examination of the doctor would amount to filling up a lacuna. This application is accordingly dismissed. However, the Trial Court is directed to take all steps for summoning the doctor who is to be examined in this case within the shortest possible time preferably within a period of three months on receipt of the order of this Court. Anand ( Sheema Ali Khan, J.)