IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47619 of 2008 AWDHESH KUMAR SINGH @ MUNNA SINGH, SON OF SRI VIDYA SINGH, RESIDENT OF VILLAGE-KATEYAN, P.S. EKMA, DISTRICT- SARAN AT CHAPRA……………………………………………...PETITIONER. Versus 1. THE STATE OF BIHAR. 2. PRABHU NATH SINGH. 3. KEDAR SINGH, BOTH SON OF LATE BASDEO SINGH, RESIDENT OF VILLAGE-MASRAKH, P.S. MASRAKH, DISTRICT-SARAN. 4. LALAN SINGH, SON OF GORAKH SINGH. 5. DUDHNATH SINGH, SON OF SARYUG SINGH, BOTH RESIDENT OF VILLAGE-MASRAKH, GOPALBARI, P.S. MASRAKH, DISTRICT- SARAN. 6. BINDESHWARI MAHTO @ BINDESHWARI PRASAD SINGH, SON OF SARYUG MAHTO, RESIDENT OF VILLAGE-HANUMANGANJ, P.S. MASRAKH, DISTRICT-SARAN. 7. HARENDRA SINGH, SON OF RAM NAGAH SINGH, RESIDENT OF VILLAGE-DHENUKI, P.S. PANAPUR, DISTRICT-SARAN. 8. DHARAM NATH SINGH, SON OF SHEO BARAI SINGH, RESIDENT OF VILLAGE-DHANAUTI, P.S. PANAPUR, DISTRICT-SARAN. ………………………………………………………….OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Sakil Ahmad Khan, Senior Advocate and S.B.K. Mangalam, Advocate. For the State : M/s. P.K. Shahi, Advocate General and Jharkhandi Upadhyay, A.P.P. For O.Ps. : M/s. Rana Pratap Singh, Senior Advocate and Sumant Singh, Advocate. ------------- O R D E R This application was heard earlier on 16.12.2008 and orders were reserved and although stay was granted, by inadvertence and typographical error the words “shall remain stayed” after the word “Patna” in the third line of third paragraph of the said order remained untyped. The petitioner who happens to be a witness to the - 2 - seizure list and whose name has been incorporated as a prosecution witness in the chargesheet submitted in a case giving rise to Sessions Trial No.1557 of 2007 for various reasons could not be examined and, therefore, he filed a petition in court with a prayer to be summoned under Section 311 Cr.P.C. However, his prayer was rejected by the learned Presiding Judge, Fast Track Court No.III, Patna, by order dated 1.9.2008 which is sought to be quashed in this application under Section 482 Cr.P.C. It was submitted on his behalf that the Sessions Trial was initially going on at Bhagalpur and the trial court had issued summons to him, however, his evidence could not be recorded at Bhagalpur since Special P.P. was absent. When he became ready to adduce evidence in this case he learnt that the Sessions Trial had been transferred to Patna and on coming to Patna when he learnt that the prosecution evidence had been closed he got filed a petition under Section 311 Cr.P.C. for recording his evidence as court witness. In this connection it was sought to be submitted that although the seizure list is not a piece of substantive evidence but in the absence of the seizure list the evidence of the witness in respect of the seizure list becomes substantive as also corroborative evidence and the evidence of this witness was absolutely necessary for a just decision in the case. The learned counsel for the petitioner sought to castigate the prosecution of favouring the accused persons and securing their acquittal because of their political background in a sham trial. - 3 - The scope of Section 311 Cr.P.C. is by now well settled. Section 311 Cr.P.C. and its complementary provision of Section 165 of the Evidence Act between them confer a wide discretion on the court to act as the exigencies of justice require. This Section consists of two parts, namely, (1) giving a discretion to the court to examine the witness at any stage and (2) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the case. It is also well settled that the requirement of just decision does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. With this background let us now examine the reasoning assigned by the court below in rejecting the payer of the petitioner. It appears that a similar and identical petition had been filed on his behalf on 19.2.2008 which was dismissed on 13.6.2008 on the ground of not having been pressed. It further appears that summons had been issued against him on 7.6.2006 and Dasti Summons were issued on 3.8.2006, 8.9.2006 and 26.9.2006 but knowingly and deliberately the witness did not appear in the court for his evidence presumably to linger and delay the trial. Thereafter, bailable warrants through the Director General of Police, Bihar, were issued on 15.2.2007 and even then the witness did not turn up. It further appears that the prosecution evidence with the consent of both the parties had been closed by the Presiding Officer of the Court at Bhagalpur and the statement - 4 - under Section 313 Cr.P.C. of the accused had already been recorded. It further appears from the impugned order that the seizure list is not on record and all attempts to procure/secure a copy of the seizure list proved unsuccessful. It appears that the statement of the petitioner is recorded in paragraph 5 of the case diary and the court below on perusal of the same found that the arms and ammunitions were seized by the police and the petitioner was a mere witness to the seizure list. On that account the court below observed that in absence of the seizure list on record the evidence of Munna Singh is not helpful for the prosecution and for just decision of this case. Another factor which weighed with the court below in rejecting the prayer was that the petition of the petitioner was not filed by the Special P.P. Under the provisions of Section 301 Cr.P.C., Public Prosecutor or Assistant Public Prosecutor is the only authority empowered to conduct the prosecution as per Section 225 Cr.P.C. and where application by private person for permission to appear through counsel for conducting trial is filed the same is not maintainable. At best, such counsels can only assist the Public Prosecutor or the Assistant Public Prosecutor. So long as the Public Prosecutor or Assistant Public Prosecutor does not abdicate his function and retains with himself control over the proceeding a private counsel can have no role to play. At best, the role which a private counsel can play is perhaps comparable with that of a - 5 - junior advocate who assists the senior in court and unless such counsel is permitted by the Public Prosecutor or Assistant Public Prosecutor he can take no step in the case/trial. In the instant case, the first petition filed by the petitioner was dismissed as not pressed as far back as on 13.6.2008. Thereafter he remained silent. It was only later that he filed a second petition for summoning him as a witness which was dismissed by order dated 1.9.2008. Again the petitioner remained silent and it was only after the trial had ended on 14.11.2008 after arguments had been advanced did the petitioner approach this Court on 20.11.2008 challenging the order of rejection dated 1.9.2008. Going back to the object of Section 311 Cr.P.C. the first part is entirely discretionary and it should be exercised judicially. There is no right in any party to claim action under this Section and the court cannot be forced to exercise the powers at the bidding of any party. The powers of the court under this Section can and ought to be exercised in the interests of justice whenever the court feels that the interests of justice so require but that by itself does not justify the contention that the failure of the court to have exercised its powers under this Section has introduced a serious infirmity in the trial itself. The second part is mandatory and where the court is of opinion that new evidence is essential to the just and proper decision of the case it is obligatory to attempt it at any stage of the proceeding, however, late. The instant case is - 6 - not one under the mandatory Section of Section 311 Cr.P.C. Due regard being had to the discussions made above, I am of the opinion that there is no merit in this application which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 19th of December, 2008. Pradeep Srivastava/A.F.R.