` IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.893 of 2007 BALESHWAR SAH AGED ABOUT 50 YEARS SON OF NARAYAN SAH R/O VILL. DAVAICH (GOPALCHAK) P.S. TISIAUTA, DIST. VAISHALI. ---- PETITIONER. Versus 1. STATE OF BIHAR 2. RAM PRAVESH SINGH S/O JUGUL SINGH ---- OPP.PARTIES. ----------- 07 30.07.2010 The complainant of the case, which gave rise to Sessions Trial no. 325 of 1999, is aggrieved by the order dated 18.04.2007, passed by learned Additional Sessions Judge, Fast Track Court no.3, Vaishali at Hazipur whereby his application filed under Section 311 of the Code of Criminal Procedure (hereinafter referred to as „The Code‟) has been considered and rejected. A brief back ground of the facts may first be indicated. Petitioner lodged an F.I.R. alleging therein that on the date of occurrence on 29.04.1997 he was sleeping on the „verandah’ of his house with his brother. Other family members were sleeping inside the house. All of a sudden two unknown criminals came on „verandah’ and tied his feet and mouth by means of a rope. The informant/petitioner got up and identified few of them. It is further alleged that at the orders of those identified accused persons two unknown dacoits committed dacoity inside the room. The wife of the petitioner/informant opened the door of one of the rooms and cajoled the accused persons to take away the entire belongings and to spare her husband. The informant described the manner in 2 which the dacoity had taken place. On departure of the dacoits „hulla’ was raised whereafter the villagers arrived and rescued them. As the police was not taking sincere efforts to investigate the case a protest petition was also filed. It appears that the police ultimately filed final form whereby no accused persons were sent up for trial. The Court below considered the protest petition as the complaint wherein witnesses were examined and the cognizance was taken and the matter was committed to the court of sessions. At the trial, charges were framed on 10.11.2004 whereafter 05 witnesses produced on behalf of the prosecution were examined. On 12.03.2007, the prosecution evidence was closed. Learned counsel for the petitioner is not in a position to submit as to whether defence witnesses have been examined in this case or not. Subsequently on 03.04.2007, an application was filed by the learned A.P.P. on behalf of the complainant making the following averments:- “…..It has been submitted by the learned Addl. P.P. that although this case has been fixed for defence stage but the evidence of the prosecution witnesses Ram Kali Devi is essential for the just decision of this case. On the above ground learned Add.P.P. has prayed to allow the prosecution to adduce the evidence of Ramkali Devi as prosecution witness…” The said application was considered and rejected by learned trial Court on the ground that Ramkali Devi (wife of the complainant) has not been cited as a witness in the protest/complaint petition and secondly that she was not examined during enquiry made under Section 202 of the Code. 3 Notice was issued to opposite party no.2. In spite of valid service of notice he has not appeared in this proceeding to contest the said claim of the complainant/petitioner. Learned counsel for the petitioner submits that going by the narration in the F.I.R. as also the protest cum complaint petition it would appear that wife of the complainant was present inside the house and was a witness to the commission of occurrence at the hands of the accuseds including the opposite party no.2 herein. It is his submission that she was not produced during enquiry as she was a rustic and „pardanasin’ lady. All the witnesses are not required to be examined during enquiry as the prosecution has only to demonstrate at that stage the presence of a prima facie case. It is his contention that considering the prosecution case as spelt out in the complaint it can very well be seen that wife of the petitioner was present in the house and was a witness to the occurrence. Learned counsel submits that in order to come to a just decision in the case her examination in the case as a witness was expedient/necessary. Learned A.P.P. on the other hand supported the impugned order. I have considered the submissions advanced on behalf of the parties and perused the materials available on record. From perusal of the F.I.R. and complaint, it would appear that wife of the petitioner was present inside the house. It is the prosecution case that the door of the room in which she was sleeping was knocked whereafter she opened the door and pleaded with the 4 accused to spare her husband and to take away the belongings. Accuseds including the opposite party no.2 herein is facing charge(s) punishable under Section 395 of the Penal Code. The prosecution evidence was closed on 12.03.2007 and immediately thereafter on 03.04.2007 the said application was filed on behalf of the prosecution. The stand of the petitioner/complainant that his wife was not examined during enquiry made under Section 202 of the Code on account of the fact that she is „pardanasin’ lady has some substance. There is no denial of the aforesaid submissions/pleadings. Section 311 of the Code has been engrafted with the purpose that in appropriate cases such examination/re-examination can be permitted by the Court in order to come to a just decision at the trial. The role of Section 311 is clear and that is to come to a just decision in the case/trial and thereby to dispense justice between the parties. At this stage, learned counsel for the petitioner submits that complainant shall produce aforesaid witness on the date fixed by learned trial Court. No adjournment on this count shall be prayed. Considering the aforesaid submission and also keeping in focus the fact that accuseds/ opposite party no.2 have not chosen to appear in the present case in spite of valid service of notice, this Court is inclined to grant one opportunity to the prosecution. Accordingly impugned order dated 18.04.2007 passed by learned Additional Sessions Judge, Fast Track Court no.3, Vaishali at Hajipur in Sessions Trial no. 325 of 1999/ 178 of 2004 is hereby quashed and set aside and the matter is disposed 5 of with the following observation/direction:- (i) The petitioner shall produce a copy of this order in the Court below within 03 weeks from today along with an application. Learned trial Court shall fix a firm date for examination of the aforesaid witness( wife of the complainant) (ii) It shall be the duty of the complainant to produce the witness on that day. No prayer for adjournment on any count shall be granted. (iii) The petitioner shall deposit a sum of Rs. 500/- in the Court below along with the application. The said amount shall be paid to the accused/opposite party no.2 on the date of examination of the witness. Sym ( Kishore K. Mandal, J.)