IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48946 of 2007 BIRENDRA KUMAR JHA @ BIRENDRA JHA Versus THE STATE OF BIHAR & ANR ----------- 03 24.02.2009 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for opposite party no.2. The petitioner is aggrieved by the order in Criminal Revision No. 499 of 2006 of the Sessions Judge, Samastipur dated 6.9.2007 by which the application under Section-311 Cr.P.C., filed by opposite party no.2, rejected by the learned Magistrate on 10.11.2006, has been allowed. Learned counsel for the petitioner urged that the opposite party no.2 is the informant. That he was all along following the developments of the case. His wife has also deposed during trial. The opposite party no.2 himself abstained from deposition and made a belated application after the prosecution evidence had been closed. The Magistrate has, therefore, rightly rejected the prayer to allow the informant to depose under 311 Cr.P.C. Additionally, while the opposite party no.2 contended before the court below that he was out of Samastipur for purpose of his vocation and, therefore, could not depose, the petitioner has obtained necessary information from his employers, the Rameshwar Jute Mill, Muktapur, Samastipur - 2 - under the Right to Information Act which shows that the opposite party no.2 during the period has been an employed and present with his employers at Samastipur. Learned counsel for opposite party no.2, relying on the materials furnished under the Right to Information Act, submits that it displays that petitioner was not at Samastipur for the full period of 365 days in the relevant years. Therefore, it could not be said at this stage with certainty that the grounds urged by opposite party no.2 that he was out of Samastipur for purpose of his vocation, was frivolous. That the entire purpose of Section-311 Cr.P.C. is to allow the best evidence to come before the court. This Court finds substance in the contention of the opposite party no.2 that even on basis of material placed by the petitioner by way of the information obtained under the Right to Information Act, this Court finds it difficult to uphold that petitioner was all along at Samastipur, so as to interfere with the impugned revisional order. However, to ensure expedient progress of the trial, learned counsel for opposite party no.2 submits that the opposite party no.2 shall appear on the next date in the trial or the date thereafter for purpose of deposition and shall continue to do so to enable the cross-examination also to be concluded till his discharge. There is no merit in this application, warranting - 3 - interference with the order of the revisional Court. The application is dismissed, but with the direction for examination and cross-examination day to day till discharge. P.K. (Navin Sinha, J.)