IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28912 of 2009 Bipin Ram @ Bhuneshwar Ram, son of late Anup Ram, resident at Bheria Rahika ( Gaushala), P.S. Katihar Muffasil, District- Katihar. … Petitioner Versus The State Of Bihar ……… Opposite Party For the Petitioner : Mr. Rana Ishwar Chandra, Advocate. For the State : Dr. Maya Nand Jha, A.P.P. ----------- 2 23.09.2011 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for State on the point of admission. This petition under Section 482 Cr.P.C. has been filed for quashing order dated 02.03.2009 passed by learned Additional Sessions Judge, Fast Track Court-II, Katihar in Sessions Trial No. 21 of 2006 by which and whereunder he rejected petition dated 10.12.2008 filed on behalf of the petitioner holding that the aforesaid petition does not come under the ambit of Section 311 of the Cr.P.C. and the defence may examine his own witnesses in defence evidence. It would appear from the record that Katihar Town (Muffasil) P.S. Case No. 208 of 2005 was registered under Sections 147, 148, 149,114, 115, 307, 326, 332, 333, 334, 337, 338, 186, 188, and 353 of the Indian Penal Code against the petitioner and 4o named as well as 250 unknown persons. It would further appears that informant and other official had gone to remove encroachment on the order of this Court but allegedly, petitioner and other accused persons made protest of the removal of the aforesaid encroachment and in that course he 2 gave one sword blow to a constable namely Sahdeo Pandit. Aforesaid case was investigated and after investigation charge sheet was submitted. The cognizance was taken and the case was committed to the Court of Sessions in usual course. The prosecution led his evidence and the evidence of prosecution was closed on 10.01.2007 and on the same day, the statement of petitioner and other accused were recorded under Section 313 of the Cr. P.C. and the case was fixed for defence evidence. It would further appear that on 10.12.2008 a petition under Section 311 of the Cr.P.C. was filed mentioning therein that some doctors, who had examined the injured Sahdeo Pandit before his death, were deliberately not examined by the prosecution and furthermore, one constable who had taken the injured to Silliguri was also not examined by the prosecution and, accordingly, it was prayed before the learned Court below that the aforesaid witnesses be summoned for their evidence to meet the end of justice. The aforesaid petition was rejected by the learned Additional Sessions Judge, Fast Track Court-II, Katihar with liberty to petitioner to examine the aforesaid witnesses in his defence. Learned counsel appearing for petitioner submits that the evidence of aforesaid witnesses are essential for doing complete justice between the parties but learned trial Court failed to understand the aforesaid fact and without applying his judicial mind rejected the petition filed on behalf of the 3 petitioner. Here, I would like to say that Chapter- XVIII of Criminal Procedure Code, 1973 deals with the procedure of trial of Sessions cases. Section 233 of the Criminal Procedure Code, 1973 says as follows – (i) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defense and adduce any evidence he may have in support thereof. (ii) If the accused put any written statement, the Judge shall file it with the record. (iii) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to the recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The bare perusal of the aforesaid provision it is manifest that the accused may adduce any evidence he may have in support thereof and similarly, if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge is duty bound to issue process for procuring the attendance of above stated witness or for production of the above stated 4 document unless he feels that the aforesaid issuance of process would delay the trial or the prayer has been made for the purpose of vexation or for defeating the ends of justice. 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 re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to be essential to the just decision of the case. The aforesaid section can be divided into two parts. In first part, the Court may summon any person as a witness but in second part the Court shall summon and examine or re-call and re-examine any person whose statement is essential to the just decision of the case. The first part of Section 311 of the Cr. P.C. is directive whereas second part of 311 of the Cr.P.C. is mandatory in nature. Now, revert back to the fact of the present case, admittedly, some doctors who had examined the deceased prior to his death and one constable have not been examined by the prosecution and after closure of the prosecution case, a prayer was made on behalf of the defence to issue summons to the aforesaid doctors as well as constable but learned trial Court rejected the aforesaid prayer. Although, the aforesaid prayer was made under Section 311 of the Cr.P.C. but were mentioning of 5 wrong section in a petition does not snatch the right from a party so if defence wants to examine the aforesaid doctors and constable in his defence, there was no hurdle before the trial Court to summon the aforesaid doctors and constable unless the Court considers that the aforesaid prayer has been made for the purpose of vexation or delay or for defeating the ends of justice. Although, the learned trial Court has given an opportunity to examine the defence its own witnesses, if the case is fixed for defence evidence but it is surprising enough that the learned trial Court has himself mentioned in impugned order that on 11.01.2007, the case was fixed for evidence and the case was running for defence witness. So, I am unable to understand as to why the learned trial Court rejected the prayer of the petitioner. In the aforesaid circumstance, the impugned order dated 02.03.2009 stands modified to this extent that the learned trial Court should issue summons to the witnesses as prayed in petition dated 10.12.2008 filed on behalf of the petitioner and the aforesaid witnesses should be examined as defence witness, if the aforesaid petition has not been filed by the petitioner for the purpose of vexation or delay or for defeating the ends of justice. Accordingly, this petition stands disposed of on admission stage itself. Md. Ibrarul ( Hemant Kumar Srivastava, J.)