IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15960 of 2007 PRAHLAD SHARMA & ORS Versus STATE OF BIHAR & ANR ----------- For the Petitioners: M/s. Ramakant Sharma, Senior Advocate, Lakshmikant Sharma and Akshay Lal Prasad, Advocates. For the State : Mr. Jharkhandi Upadhayay, A.P.P. ------------ O R D E R Through this application the five F.I.R. named accused of Sessions Trial No.92 of 2002 arising out of Haspur P.S. Case No.46 of 2000, have prayed for the quashing of the order dated 8.3.2007 passed therein by the learned Presiding Judge, Fast Track Court No.II, Aurangabad, whereby he has rejected the petition of the petitioner under Section 311 Cr.P.C. for recall of prosecution witness nos.1, 2, 3 and 4 for their further cross examination. It appears that Haspur P.S. Case No.46 of 2000 was registered under Sections 341/323/324/307/379/448/34 I.P.C. on the basis of the written report submitted by one Subhash Chandra Pandey and after due investigation a chargesheet thereunder was submitted. After commitment of the case, the trial was taken up and after a few prosecution witnesses had been examined, good sense appears to have prevailed on the parties at the intervention of common friends and well wishers and in view of the fact that the petitioners and the informant were co-villagers and several cases were pending between them, a compromise was entered into between the parties and in - 2 - pursuance thereof the informant and the injured filed a petition before the trial court that they are eager to end the litigation and a separate petition was filed by the informant and the injured for permission to compromise the case. However, the petitions filed did not find favour with the trial court who allegedly in a very mechanical manner rejected the prayer made on behalf of the parties solely on the ground that it has simply been stated in the petition filed by the accused and the petitioners that the parties have entered into a compromise and on that score alone the witnesses examined cannot be recalled for their further cross examination. It has been submitted on behalf of the petitioners that for the ends of justice the trial court ought to have noticed the informant and the injured to verify the veracity of the compromise and permission to compromise the matter but the trial court instead of doing so and merely on the objections raised by the prosecutor rejected the prayer by the impugned order. There is no dispute that Section 311 Cr.P.C. confers a wide discretion on the court to act as the exigencies of justice require. It consists of two parts; (1) the first part which is discretionary enables the court at any stage to summon any one as a witness or to examine any person present in court or to recall and re examine any witness. The second part which is mandatory compels the court to take any of the above steps if the new evidence appears to be essential for the just decision of the case. It would thus appear that there is no limitation - 3 - on the power of the court arising from the stage to which the trial court may have reached, provided the court is bonafide of the opinion that for the just decision of the case steps must be taken. Whether such new evidence is essential or not must of course depend on the facts of each case, the object of the section being to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just decision of the case. However, this power must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of power may lead to undesirable results. While exercising such powers, the court is also required to take due care and caution to see that the power is not exercised for filling up lacuna and loopholes left by the prosecution or by the defence or to the disadvantage of the accused or to give an unfair advantage to the rival side and that such additional evidence should not be received as a disguise for retrial or to change the nature of the case against either of the parties. It appears that some of the offences whereunder charges had been framed are not compoundable. I have perused the impugned order and it appears therefrom that P.Ws.1, 2, 3 and 4 were examined on 4.7.2003, 10.12.2003, 26.6.2004 and 2.9.2004 respectively. The petition for their recall was filed in the year 2007. The Apex Court in the case of Nisar Khan Vs. State of Uttaranchal reported in (2006) 9 SCC 386 observed that where an application is filed by the accused to recall the eye witnesses after a lapse of more than one year and after they were examined, cross examined and discharged, the same should - 4 - not be allowed. Reverting back to the principle as laid down by the Apex Court, I find no merit in the application as the same would be a disguise to change the nature of the case. It is also to be noted that some of the offences are not compoundable. In that view of the matter, even if the parties have compromised the matter and a compromise petition has been filed in that regard, the same can have no bearing on the trial court. However, in the event that the trial ends in conviction of the accused, the fact of compromise between the parties can be looked into as one of the mitigating circumstances in awarding the sentence. In view of the discussions made above, there is apparently no ground on the basis whereof the impugned order of the court below can be quashed. Accordingly, this application fails and is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 26th of September, 2008. Pradeep Srivastava/A.F.R.