IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.27743 of 2009 GOPAL PRASAD SINGH, SON OF LATE MAHENDRA SINGH, RESIDENT OF VILLAGE CHAMPAPUR, P.O. BAKHTIYARPUR, P.S. BAKHTIYARPUR, DISTRICT PATNA. -- PETITIONER Versus THE STATE OF BIHAR -- OPPOSITE PARTY ----------- 2 5.11.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. The petitioner has challenged the order dated 28.5.2009 passed in Complaint Case No. 65/07 corresponding to Trial No. 217/09 by the Judicial Magistrate, 1st Class, Sitamarhi by which the application filed by the prosecution under Section 311 of the Code of Criminal Procedure has been allowed. The main contention of the petitioner is that an application was filed for permission to produce witnesses on 7.5.2009. It is submitted that the impugned order amounts to recall of the order dated 7.5.2009. Learned counsel has produced the order sheet to show that opportunities were given to the prosecution to produce witnesses however, despite opportunities given, the witnesses could not be produced. On perusal of the order, I find that the opportunities were given to the prosecution to produce witnesses on 10 to 12 days which is apparent from the order dated 21.2.2009 onwards. On 7.4.2009 the Court called out the case but none of the parties appeared in the case. Apparently in the second half an application was filed under Section 311 of the Code of Criminal Procedure praying therein that the prosecution may be permitted to produce the witnesses. The Court rejected 2 the application and closed the evidence. Subsequently on 28.5.2009 an application was again filed under Section 311 of the Code of Criminal Procedure to permit the prosecution to examine witnesses. An objection has been raised on behalf of the counsel for the petitioner that once the case has been closed, the Court was not justified in allowing the prosecution to recall witnesses for examination. It is also submitted that the order dated 28.5.2009 amounts to recall of the earlier order dated 7.5.2009. Technically speaking the learned counsel for the petitioner may be correct but factually it appears that on 7.5.2009 both the parties were not present in Court and the matter in fact was not decided on merit at all. Turning to Section 311 of the Code of Criminal Procedure it is apparent that “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 or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” In this case there is no question of passing an order of recall or re-examination of the witnesses. In this case in fact no witness could be produced by the prosecution on the dates mentioned aforesaid. The purpose of Section 311 of the Code of 3 Criminal Procedure is to re-examine or recall witnesses if it would help the Court to come to a just decision in a case. In the facts of this case that the order dated 28.5.2009 really does not amount to recall or review of an order, besides which the very purpose of conducting a trial would be vitiated if the Court closes the cases in haste and entire purpose of Section 311 would stand defeated. This application is thus allowed. It is made clear that the Court below should not grant any time to the prosecution in this case without good cause and the trial should be concluded expeditiously. Sanjay (Sheema Ali Khan, J.)