IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50970 of 2007 JANARDAN PRASAD, Son of Late Suraj Prasad, resident of of Village- Gheghta, P.S. Chapra Mufassil, District-Saran at Chapra --------------- Petitioner Versus 1. The State of Bihar 2. Smt. Janki Devi@ Janki Dulari Devi, Wife of Bikrama Singh 3. Om Prakash Singh 4. Upendra Singh, both sons of Bikrama Singh All of Village-Gheghta, P.S. Chapra Mufassil, Distt- Saran at Chapra --------------- Opp.Parties. ----------- For the petitioner : Mr. Arun Kumar Prasad, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. _________ O R D E R 2 29-01-2009 The informant of Sessions Trial no.459 of 2003, arising out of Chapra Mufassil P.S. Case no.73 of 2003, has prayed for the quashing of the order dated 25.9.2007 passed therein by the learned Presiding Judge, Fast Track Court no.IV, Saran at Chapra, whereby he has rejected the petition filed by the prosecution under Section 311 Cr.P.C. and Section 165 Evidence Act for marking certain items seized in connection with the aforesaid police case as material exhibits on behalf of the prosecution. It appears that in course of investigation of the aforesaid Chapra Mufassil P.S. Case , the police seized some broken pieces of bottle of wine , small pieces of bricks, size no.5 lady Hawai Chappal of Lakhani Brand of right leg from the place of occurrence for which a seizure list was prepared in presence of witness. It further appears that on 7.6.2007 P.W.6, the Investigating Officer, was examined, cross- examined and discharged and 3.7.2007 was fixed for examination of - 2 - other prosecution witnesses. Since Presiding Officer was on leave on the following date, the next date was fixed on 25.7.2007 for examination of the prosecution witnesses on which date although a petition was filed on behalf of the prosecution to call for some documents for which 15 days time was sought ,the learned trial court allegedly closed the evidence on behalf of the prosecution abruptly and fixed 8.8.2007 for statement. It further appears that on 8.8.2007, the petition under Section 311 Cr.P.C. and Section 165 Evidence Act was filed on behalf of the prosecution to call for the items seized from the place of occurrence for making them as prosecution exhibits but the court below adjourned the matter to 22.8.2007, 5.9.2007 and 14.9.2007 and finally by the impugned order he rejected the petition aforesaid. It appears from the impugned order of the learned Presiding Judge that charges were framed on 12.3.2004 and, thereafter, all the five prosecution witnesses named in the aforesaid chargesheet were examined and on 7.6.2007 the Investigating Officer had been examined, cross-examined and discharged. The next date fixed in the case was 3.7.2007 for further prosecution evidence but no petition as claimed by the petitioner appears to have been filed on that date for calling for the items seized from Chapra Mufassil P.S. and since all the witnesses of the chargesheet had been examined, hence prosecution case was closed on 25.7.2007 and the case was fixed for statement of the accused under Section 313 Cr.P.C. on 8.8.2007 and it was only then that the prosecution woke up and filed the petition - 3 - under Section 311 Cr.P.C. etc. It is by now well settled that the provisions of Section 311 Cr.P.C. cannot be utilized to call witnesses to prove exhibits or documents. It is also not to be used for filling up the loopholes or lacuna in either the prosecution or defence case. It will also appear from the petition under consideration, which has been appended with this application as Annexure-4 that the prayer of the prosecution was to call for the items seized from Chapra Mufassil P.S. and mark it as prosecution exhibits and not to call for any witness. The provision of Section 311 Cr.P.C. is not meant for such purposes. There is another aspect of the matter. Since the items to be marked as material exhibits had been seized by the Investigating Officer, it was for the prosecution to get them exhibited when the Investigating Officer was being examined but the prosecution failed in its duty to do so and has now resorted to filing the aforesaid petition to fill up the lacuna and loopholes in the prosecution case which is neither permissible nor warranted. Even the provision of Section 165 Evidence Act would not, in the circumstances as mentioned above, come to the rescue of the prosecution. I find no merit in this application which is dismissed. ( Abhijit Sinha, J ) NKS/- - 4 -