IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.45742 of 2007 Sikandar Singh, son of Late Bishundeb Singh, resident of Village-Balgudar, Police Station and District-Lakhisarai. …………………………………………………….Petitioner. Versus 1. The State Of Bihar. 2. Anita Devi, wife of Sanjay Singh, resident of village- Balgudar, Police Station and District-Lakhisarai. ………………………………………Opposite Parties. ---------------------------------- For the Petitioner: M/s. D.K. Sinha, Senior Advocate And Rajesh Kumar, Advocate. For the State : Mr. D. Mehta, A.P.P. -------------------------------------- O R D E R 13. 19.12.2011. The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 14.9.2007 passed by the Additional Sessions Judge, Lakhisarai, in Sessions Trial No.1049 of 2004, arising out of Lakhisarai P.S. Case No.297 of 2003, allowing the petition, filed under Section 311 of the Code of Criminal Procedure on behalf of the informant-opposite party no.2, Anita Devi, to summon two witnesses, Sanjay Singh and Karu Singh, for their examination. 2. In brief, the facts, leading to this application, are 2 that on the basis of the fardbeyan of the informant-opposite party no.2, Anita Devi, Lakhisarai P.S. Case No.297 of 2003 was instituted on 11.11.2003 under Sections 364/34 of the Indian Penal Code against the accused, Dharmrendra Singh, Sikandar Singh (petitioner), Amrit Singh and Sarha Singh alias Kaushal Singh and four unknown, regarding the kidnapping/abduction of Rajeshwari Singh, the father-in-law of the informant-opposite party no.2, Anita Devi. In course of investigation, Sections 302 and 201 of the Indian Penal Code were added in the F.I.R. by the A.C.J.M. Incharge, Lakhisarai, vide order dated 21.11.2003. The police on investigation submitted the chargesheet dated 11.4.2004 against the F.I.R. named accused, Sikandar Singh (petitioner) and non F.I.R. named accused, Ranjit Singh alias Budhna and Chulbul Singh under Sections 364 and 302/34 of the Indian Penal Code and 27 of the Arms Act, continuing the investigation against the 7 persons including the rest three F.I.R. named accused. Thereafter, the cognizance of the offence was taken and the case was committed to the court of sessions for trial. In course of trial, on 10.9.2007, a petition under Section 311 of the Code of Criminal Procedure was filed on behalf of the informant-opposite party no.2, Anita Devi, with a prayer to 3 summon Sanjay Singh and Karu Singh, as witnesses for their examination. After hearing the parties, the Additional Sessions Judge, Lakhisarai, allowed the petition filed on behalf of the informant-opposite party no.2, Anita Devi, to summon Sanjay Singh and Karu Singh, vide order dated 14.9.2007, fixing the date for evidence on 3.10.2007. 3. Learned counsel appearing on behalf of the petitioner made submission that the Additional Sessions Judge, Lakhisarai, has allowed the petition of the informant- opposite party no.2, filed under Section 311 of the Code of Criminal Procedure, to summon Sanjay Singh and Karu Singh as witnesses for their examination at the stage of the argument, while both persons are neither named in the chargesheet as witnesses nor their statements under Section 161 of the Code of Criminal Procedure have been recorded by the police in course of investigation. Moreover, the informant-opposite party no.2, Anita Devi, who has been examined as P.W.8 in the court, has also not disclosed the name of aforesaid two persons as witnesses of the occurrence. As such, the impugned order has been passed by the Additional Sessions Judge, Lakhisarai, without applying judicial mind, which is against the spirit of Section 311 of the 4 Code of Criminal Procedure. 4. On the other hand, learned A.P.P. for the State made submission that the court has discretion under Section 311 of the Code of Criminal Procedure to summon any person as a witness in the interest of justice, as such impugned order does not suffer from any illegality. 5. It appears from the impugned order dated 14.9.2007 that after conclusion of the argument of the prosecution, the argument was going on behalf of the defence. At that stage, a petition on behalf of the informant-opposite party no.2, Anita Devi, was filed under Section 311 of the Code of Criminal Procedure on 10.9.2007 to summon the non- chargesheeted witnesses, Sanjay Singh and Karu Singh, for their examination. It further reveals from the impugned order that a Bench of this Court vide order dated 28.3.2007 passed in Criminal Misc. No.6122 of 2007 had given direction to the court below to expedite the disposal of the case. It also appears from the impugned order that the name of Sanjay Singh and Karu Singh do not figure in the chargesheet as witnesses nor their statements had been recorded under Section 161 of the Code of Criminal Procedure by the Investigating Officer. The informant-opposite party no.2, 5 Anita Devi, who has been examined as P.W.8, has also not stated the names of both persons as witnesses of the occurrence. It further appears from the impugned order that the names of the said two persons were figured in the protest petition, which is said to be filed by the informant-opposite party no.2, Anita Devi. The Additional Sessions Judge, Lakhisarai, detailing the aforesaid facts and circumstances of the case allowed the petition filed, under Section 311 of the Code of Criminal Procedure on 10.9.2007, on behalf of the informant-opposite party no.2, Anita Devi, to summon Sanjay Singh and Karu Singh, as witnesses, in the interest of justice. 6. On bare reading of Section 311 of the Code of Criminal Procedure, it appears that the legislature has vested the discretion to the court to examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined at any stage of inquiry, trial or other proceeding under the Code of Criminal Procedure but this discretion should be exercised judiciously for the ends of justice. 7. The names of Sanjay Singh and Karu Singh, as summoned through the impugned order, do not appear in the chargesheet nor their statements had been recorded under 6 Section 161 of the Code of Criminal Procedure in course of investigation. The informant-opposite party no.2, Anita Devi, who has been examined as P.W.8, also did not disclose their names in her deposition as the witnesses. The protest petition is not the part of the police record and merely that Sanjay Singh and Karu Singh are named in the protest petition as witnesses, the same can never be a ground to summon them as witnesses under any provisions of law. 8. Under the aforesaid facts and circumstances, I find that the impugned order dated 14.9.2007 passed by the Additional Sessions Judge, Lakhisarai, in Sessions Trial No.1049 of 2004, arising out of Lakhisarai P.S. Case No.297 of 2003, suffers from illegality and the same is hereby quashed. 9. In the result, this application stands allowed. P.S. (Rajendra Kumar Mishra, J)