IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.30526 of 2009 Satendra Kumar Versus The State Of Bihar & Ors ---------- For the petitioner: Mr Bindeshwar Pd. Singh, Advocate Mr Ashok Kumar, Advocate For the State : Dr Mayanand Jha, A.P.P. For opposite party nos. 2 to 6 : Mr Vijay Kumar, Advocate ------------ 03 30.11.2011 Heard learned counsel for the petitioner, learned counsel for opposite party nos. 2 to 6 as well as learned Addl. Public Prosecutor for the State on the point of admission and in my view, this petition can be disposed off at the admission stage itself. This petition under section 482 of the Cr.P.C has been filed against the order dated 12.5.2009 passed in Sessions Trial no. 374/2002 by which learned Ist Addl. Sessions Judge, Jehanabad rejected the petition dated 16.3.2009 filed on behalf of the petitioner who happens to be brother of the original informant, namely, Gita Devi. Shorn the unnecessary details, it is suffice to say that original informant, namely, Gita Devi filed complaint case which was converted into Arwal P.S. case no. 58/1997 for the offences under sections 498A, - 2 - 323,379, 307 of the IPC and 3/ 4 of the D.P. Act. During the pendency of the aforesaid case, original informant died for which another case was registered against opposite party nos. 2 to 6 for the offences under section 302 and other sections of the IPC. It would appear from perusal of the impugned order that summons were issued to the petitioner as well as his mother for recording their deposition in Sessions Trial no. 374/2002 in the year 2004 but in spite of receipt of the aforesaid summons, they did not turn up to depose before learned Ist Addl. Sessions Judge, Jehanabad in Sessions Trial no. 374/2002. Later on, the prosecution evidence was closed and statements of the accused persons were recorded on 28.1.2009 and after that petition dated 16.3.2009 was filed on behalf of the petitioner in course of argument and it was prayed before the learned Ist Addl. Sessions Judge, Jehanabad to record the statements of the petitioner as well as his mother but the aforesaid prayer was turned down by the learned Ist Addl. Sessions Judge, Jehanabad passing impugned order dated - 3 - 12.5.2009 against which this quashing petition has been filed. Learned counsel appearing for the petitioner submits that, as a matter of fact, having receipt of the summons when the petitioner and his mother went to depose before the court, they came to know that the court of Ist Addl. Sessions Judge, Jehanabad was lying vacant and after that they returned to their home. It is further contended by him that the petitioner as well as his mother were material witnesses and their evidence was essential for just and proper decision of the case. Learned counsel appearing for the opposite party nos. 2 to 6 refuted the above stated contentions and submitted that petitioner and his mother intentionally and deliberately did not turn up before the learned trial court to depose in Sessions Trial no. 374/2002 and when the court recorded the statements of the accused persons under section 313 of the Cr.P.C and started hearing argument of the parties, the above stated prayer was made on behalf of the petitioner to delay the trial of opposite party nos. 2 to 6 . It is further contended by him - 4 - that section 311 of the Cr.P.C is not meant for filling up lacuna of the prosecution case and the prosecution can not take the aid of section 311 of the Cr.P.C for delaying the trial of the accused. Having heard rival contentions of both the parties, I have gone through the record. No doubt, petitioner and his mother were noticed by the learned trial court to depose in the above stated Sessions Trial no. 374/2002 in the year 2004 but they did not turn up before the learned trial court and subsequently, in the year 2009, a petition under section 311 of the Cr.P.C was filed when the argument in the aforesaid case was taken up by the learned trial court, but here, I would like to refer section 311 of the Cr.P.C which runs as follows:- Any court may, at any stage of any inquiry, trial or other proceeding under this Code, 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; and the court shall summon and examine as recall and re-examine any such person if his evidence appears to it to be essential - 5 - to the just decision of the case. The second part of section 311 of the Cr.P.C castes a duty upon the court to examine or re-examine the person whose evidence is essential for just and proper decision of the case. The impugned order dated 12.5.2009 reveals that the learned Ist Addl. Sessions Judge, Jehanabad did not consider this aspect of the matter as to whether the evidence of the petitioner and his mother was essential for just and proper decision of the case or not. Accordingly, I am of the considered view that the learned Ist Addl. Sessions Judge, Jehanabad has committed an error in refusing to record the statements of the petitioner as well as his mother. Learned counsel for the petitioner assures this court that the aforesaid witnesses, namely, petitioner as well as his mother would be produced before the learned trial court within one month from the date of receipt/production of a copy of this order to the concerned court. In the aforesaid circumstances, this quashing petition is allowed on admission stage itself - 6 - and accordingly, order dated 12.5.2009 passed by Ist Addl. Sessions Judge, Jehanabad in Sessions Trial no. 374/2002 is, hereby, quashed with direction to the petitioner along with his mother to depose before the court below in Sessions Trial no. 374/2002 within one month from the date of receipt/ production of this order to the concerned court and furthermore, the learned trial court should record the statements of petitioner as well as his mother, if they want to depose before the trial court. It is made clear that after one month from the date of receipt/production of a copy of this order, the learned court below shall be at liberty to close the prosecution case and shall proceed with Sessions Trial no. 374/2002. In the aforesaid manner, this petition stands disposed off on admission stage itself. Shahid ( Hemant Kumar Srivastava,J)