IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39751 of 2007 SANJAY KUMAR, Son of Laloo Singh, R/0 Chain Tola, P.S. Suiltanganj, District Pastna. ………… Petitioner Versus STATE OF BIHAR ….. Opp. Party ----------- 5 5.1.2009 Heard Mr. Tara Kant Jha, learned Senior Counsel and Mr. Amish Kumar, Advocate for the petitioner and Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State. Learned counsel for the petitioner is permitted to make correction in the P.S. case No. given in para no. 1. One of the accused of Pirbahore P.S. Case No. 158 of 1994, G.R. No. 2038 of 1994, has preferred this application for quashing of order dated 17.8.2007 passed by the learned Sub Divisional Judicial Magistrate, Patna, whereby he has allowed the application filed by the prosecution under section 311 Cr.P.C. for further examination of P.W. 3, Md. Husnain. It appears that the examination – in – chief and cross examination in part of the witness took place on 28.8.1998 and 2.9.1998 respectively and on the second day of the examination his further cross examination was deferred on the prayer being made by the defence. However, the said witness could not appear in Court on the subsequent date or thereafter notwithstanding issuance of summons and bailable warrant and as a result thereof the prosecution evidence was closed on 28.11.2006. P.W. 3 Md. Husnain happens to be the informant of the case. It further appears from the impugned order that although summons were issued to him - 2 - no service report was received back as the witness had been transferred in the mean time out of Patna and there was no information regarding his new place of posting. It also appears from the impugned order that the learned Magistrate while passing the impugned order was swayed by the fact that the cross examination of the witness had been deferred on the prayer of the defence and that the witness being the informant of the case his evidence was necessary for a just decision in the case. Admittedly P.W. 3 was examined and cross examined in part of 28.8.1998 and 2.9.1998 respectively and on the second day his further cross examination was deferred on the prayer of the defence. In the circumstances it has to be presumed that the witness had knowledge and information of the next date fixed in the case when his further cross examination would take place. It is difficult to reconcile with the fact that the witness had no information regarding the next date fixed in the case. Even otherwise it was for the defence to cross examination the defence and if they have not cross examined in full advantage thereof would go to the prosecution. Therefore, there was no reason why the prosecution should file a petition for his recall and further cross examination under section 311 Cr.P.C.. To my mind the entire process is an abuse of the process of the Court, moreso when opportunities were given to the witness to turn-up which he failed to comply with. The prosecution had admittedly led the examination in chief of the witness and the - 3 - defence had examined him in part. Therefore, it would have been appropriate for the defence to have filed the application rather than the prosecution since non- examination of the witness would be to the disadvantage of the defence rather than of the prosecution. In the aforesaid circumstances the impugned order is hereby set aside and the application is allowed. Since the case is of the year 1994 it would only be in the fitness of things if the trial is disposed of expeditiously preferably within a period of 6 months from the date of receipt of this order. Spd/- (Abhijit Sinha, J.)