IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17444 of 2010 RAJANDHARI PRASAD SINGH & Ors Versus THE STATE OF BIHAR & ANR ----------- 2. 21.6.2010. Heard. This petition arises out of complaint case no.3026(C)of 2007 in which an order was passed on 22.9.2008 by which the evidence under Section 244 of the Cr.P.C. was shut down on account of the complainant not producing any witness or other evidence. By the same order, the court directed hearing on framing of charges on 17.10.2008. In spite of having heard the accused persons on framing of charge, the complainant could not be heard and a direction was given to the complainant for making appropriate pairvi and also for remaining present so that further hearing could be made on framing of charges on 24.10.2008 on which date a petition under Section 311 of the Cr.P.C. was filed by the complainant. The above petition under Section 311 Cr.P.C. was rejoined by through a proper reply by the petitioners who are accused on trial. The petition u/s 311 Cr.P.C. appears heard and ultimately an order dated 14.1.2009 was passed allowing the - 2 - application under Section 311 of the Cr.P.C. It appears that three witnesses were examined after resorting to the provisions of Section 311 of the Cr.P.C. and the petition for discharge filed by the petitioners was rejected by order dated 30th of October, 2009 by making reference to the evidence of three witnesses examined u/s 311 Cr.P.C. and it was further ordered and charges be framed against the accused persons. The petitioners challenged the vires of order dated 30th of October, 2009 by preferring a criminal revision petition before the learned Sessions Judge, Patna which was registered as Cr.Revision Petition No.993 of 2009 and after hearing both the parties the learned Sessions Judge dismissed the revision petition holding that if the evidence recorded under Section 244 of the Cr.P.C. was sufficient, the trial has to be proceeded. Sri Suraj Narayan Prasad Sinha, the learned Senior Counsel for the petitioners has mainly challenged the above observations of the learned Sessions Judge that the evidence under Section 311 of the Cr.P.C. has been treated as evidence under Section 244 of the Cr.P.C. and - 3 - that has resulted in great miscarriage of justice and as such there is every chance of the process of the court being abused. Sri Sinha took the court through the provisions of Section 244 of the Cr.P.C. as also those of Sections 311 of the Cr.P.C. and submitted that when the court had shut down the evidence of the complainant under Section 244 of the Cr.P.C., it had no powers to proceed under Section 311 of the Cr.P.C. as the evidence u/s 311 Cr.P.C. was completely different in nature from that which could be recorded under Section 244 of the Cr.P.C. By referring to the provisions of Section 245 of the Cr.P.C. pertaining to discharge of the accused persons, Sri Sinha further submitted that only evidence under Section 244 of the Cr.P.C. has to be considered for framing of charges or discharging an accused. It was lastly contended that this court or for that matter any other court, must not do anything so as to filling the lacuna in the prosecution case. Sri Dashrath Mehta, the learned counsel appearing for the State has contested the contentions and has referred to the provisions - 4 - of Section 311 of the Cr.P.C. and has submitted that there does not appear any legal bar for any court to resorting to Section 311 of the Cr.P.C. for recording evidence or taking any evidence which, in its opinion appeared necessary to be recorded or taken for the just decision of the Court, which could have been recorded by the court under Section 244 of the Cr.P.C. and to pass an order as was passed by the learned Magistrate on the 30th of October, 2009. Sri Mehta emphasized that the words “enquiry, trial or other proceedings” gave grater latitude to a Court, as regards its powers to act under that particular provision and putting it into a narrower interpretative terms would simply defeat the purpose, it was enacted for. For appreciating the contentions advanced on behalf of petitioners, it is not necessary to notice the facts of the case leading to the impugned order, suffice it to mention that in spite of having been granted several opportunities for adducing evidence under Section 244 of the Cr.P.C., the complainant did not produce any witness for his - 5 - evidence as is required by the above noted provisions. It is true that for framing of charge or for passing an other order under Section 245 of the Cr.P.C., the Magistrate who may be holding and trial under Chapter XIX-B of the Cr.P.c. has to consider the evidence of witnesses who have been examined by him under Section 244 of the Cr.P.C. It was on the above terms that Sri Sinha was emphatically arguing that it was a complete illegality as soon as the learned Magistrate proceeded to record the evidence which was shut down by the court at the stage of Section 244 of the Cr.P.C. by taking resort to Section 311 of the Cr.P.C. For appreciating the argument of Sri Sinha, it is pertinent to have the glance of Section 311 of the Cr.P.C. which reads as follows:- “Power to summon material witness, or examine person present.—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”. The language of the provision is so wide - 6 - as to making it permissible for any court to resort to the above provision at any stage of any enquiry, trial or other proceeding under the Code provided it has come to conclusion that proceeding under Section 311 Cr.P.C. was necessary for the just decision of the case. While deciding as to whether the Court should proceed under Section 311 Cr.P.C. to take evidence as permissible under that provision, it could be within its discretion, but nonetheless, it has to apply its discretion judicially and in a manner which furthers the ends of imparting justice and never appears defeating it. After all, does not the Court exist for imparting justice completely and fairly? While proceeding under Section 311 the court may summon any person as a witness or may examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined. But the rider as just pointed out is that the court must reach a conclusion after considering the circumstances of the case that the summoning and examining or recalling and re- examining any such person for recording his evidence was essential for the just decision of - 7 - the case. It is undisputed that the Magistrate was holding a trial of a case which he was competent to try under Chapter XIX-B of the Cr.P.C. It is not disputed that in spite of having afforded many opportunities to the complainant the Magistrate failed in getting a witness examined by him in the above case and as such he closed the prosecution case and directed the case to be fixed for hearing on framing of charges. While the above hearing was under way, a petition was filed by the complainant under Section 311 of the Cr.P.C. and that petition was heard and was allowed as indicated a bit earlier. If one considers the provisions of Section 244 of the Cr.P.C., it is indicated by the provision that evidence produced has to be recorded by at that particular stage of the proceeding which had been instituted otherwise than on a police report. On further examining the provisions of Chapter XIX-B, one could find that at that particular stage the accused may not avail of his right of cross-examination of a witness as is strictly granted to him by the part of the provisions of Section 246(5) of the Cr.P.C. Not - 8 - only the accused has a right to cross-examine the witness u/s 246(5)Cr.P.C., he appears also having right to cross-examine of a witnesses of his choice as may be expressed by him by filing a proper petition before a Magistrate as to which of the witnesses who had been examined by the court under Section 244 of the Cr.P.C., shall be cross-examined by him under Section 246(5)of the Cr.P.C. Thus, the stage of Section 244 of the Cr.P.C. and that of Section 245 as also the stage which could be reached by a Magistrate in the light of the provisions of Section 246 of the Cr.P.C. are all parts of „trial‟. I have just noted the ambit of Section 311 Cr.P.C. It creates an additional special jurisdiction in a Court, which might have regular jurisdiction under any Chapter of the Cr.P.C. to summon witnesses or person for taking evidence, which may include persons already examined and discharged. The jurisdiction created by the Section is dependent only upon the satisfaction of a Court that taking of such evidence was essential to the just decision of a case. Special nature of the additional - 9 - jurisdiction may also be comprehended by considering the extent of proceedings it could be applied to. The import and extent of the powers created by the provision may be considered further from the fact that it is only to aid a Court in doing complete justice. There is no dispute in it, that Magistrate having granted many opportunities could not force the complainant to produce a witness and as such he closed the evidence under Section 244 of the Cr.P.C. That order closing the evidence was passed at the stage of the trial. If the evidence of the complainant had not been closed at the stage of Section 244 of the Cr.P.C., there could not have any occasion for the Magistrate to resort the provision of like Section 311 of the Cr.P.C. to record evidence as he could have ordinarily recorded the evidence of the witnesses who could have been produced before him at that particular stage. Because, the Magistrate had acted to shut down the prosecution evidence at the stage of Section 244 of the Cr.P.C., i.e., the stage of the trial of the case so he was well within his jurisdiction to proceed under Section 311 of - 10 - the Cr.P.C. to take evidence of the complainant‟s witnesses in the light of that particular provision. At this stage, Sri Sinha was pointing out to the court that the witnesses who were examined under Section 311 of the Cr.P.C. could never be categorized as complainants‟ witnesses, they could always be categorized as „Court witnesses‟. If the power was utilized for examining a witness who could have been examined u/s 244 Cr.P.C., it could be said that examination of witnesses under Section 311 Cr.P.C. was in aid of the Court in exercise of its powers under Section 244 Cr.P.C. The witnesses examined by virtue of Section 311 Cr.P.C. could be very well the witnesses of the complainant as they had been examined in aid of Section 244 Cr.P.C. and as such they could be said to be witnesses of the complainant and not of the Court, especially, when the Code of Criminal Procedure did not differentiate between a complainant‟s witness and a Court witness. Again, the witnesses were either not cross- examined or allowed to be cross-examined which being examined u/s 311 Cr.P.C. as they did not - 11 - have any right at that particular stage to cross-examine of any witnesses who could be examined under Section 244 of the Cr.P.C. Thus the court finds that there was no illegality committed by the Magistrate, who, after having closed his or her evidence under Section 244 of the Cr.P.C., proceeded under Section 311 of the Cr.P.C. That particular provision under Section 311 of the Cr.P.C. has been designed only to meet such exigencies. If we are going to interpret the law as strictly as was pointed out by Sri Sinha, then the whole purpose of trial proceeding and the provision of the Section 311 Cr.P.C. shall be shattered and justice would become illusive to victims of offences. As regards filling up the lacuna of prosecution case, the admitted position is that there was no evidence on record, so there could not be any lacuna at that stage. In the result, I do not find any merit in this petition, the same is dismissed. B.Kr. ( Dharnidhar Jha, J. )