IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.28984 of 2009 Budhu Yadav, Son of Late Kushal Yadav, Resident of Village-Bishodah, P.S.- Chandramandih, District-Jamui …… Petitioner. Versus State Of Bihar ------------------ For the petitioner: Mr. Amar Prakash, Advocate For the State: Mr. Nirmal Kumar Sinha 2 29-09-2011 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor for the State. Petitioner while invoking extraordinary jurisdiction of this court vested under Section-482 of the Cr.P.C. has prayed for quashing the order dated 14-07-2009 passed by Additional Sessions Judge (F.T.C. No.- I), Jamui in Sessions Trial No. 582 of 1997/76 of 2009 whereby and whereunder, he allowed the petition dated 01-06-2009 filed on behalf of the prosecution and directed the prosecution to produce one witness, namely, Mohan Yadav for his examination. Petitioner is an accused in above-said Sessions Trial No. 582 of 1997/76 of 2009 and it would appear from the record that the prosecution evidence was closed and the statement of accused persons of that case was recorded under Section-313 of the Cr.P.C. on 09-09-2008 and the case was running for defence and argument but while the case was pending for defence and argument, a petition was filed before learned trial court on 01-06-2009 mentioning therein that one injured witness namely, Mohan Yadav has not been examined as yet. A - 2 - rejoinder to the aforesaid petition was filed on behalf of the accused persons and the learned trial court having heard the rival contentions of the parties, allowed the petition of prosecution and directed the prosecution to produce the aforesaid witness passing impugned order dated 14/07/2009 against which this quashing petition has been filed. Learned counsel appearing for the petitioner submits that the petitioner and other accused are facing trial since the year, 1997, much earlier to the filing of the above-said petition. The prosecution case had already been closed and furthermore, several opportunities were given to the prosecution to produce his evidence but prosecution could not succeed to avail the aforesaid opportunities and subsequently, the prosecution case was closed and the statement of accused persons was recorded. It is further contended by him that as a matter of fact, a counter case is also pending between the parties and the prosecution party of the present case wants to delay the trial and that is why the prosecution is in habit of filing petitions after petitions. It is also pointed out by him that the proposed witness, namely, Mohan Yadav is not an injured witness nor he has been shown in charge sheet as witness but in spite of that, the learned trial Judge has not considered the aforesaid facts and passed the impugned order. On the otherhand, learned counsel appearing for the state supported the impugned order arguing that though the - 3 - learned trial Judge has passed impugned order under Section- 231 of the Cr.P.C. but in the interest of justice, the examination of injured witness, Mohan Yadav is very essential, so there is no need for this court to interfere with the impugned order of the learned trial Judge. Having heard rival contentions of the parties, I have gone through the record and in my view; this quashing petition can be disposed of at the stage of admission itself. It is an admitted position that the aforesaid proposed witness, namely, Mohan Yadav has not been shown as charge- sheeted witness but the prosecution wants to examine the aforesaid witness as according to prosecution case, the aforesaid witness had also sustained injury in the alleged occurrence. It is also an admitted position that the prosecution evidence had already been closed much prior to filing of petition dated 01-06-2009 but here I would like to refer Section-311 of the Cr.P.C. which runs as follows: “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 witness in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall - 4 - summon and examine or recall and re-examine any person if his evidence appears to it to be essential to the just decision of the case.” A bare perusal of the aforesaid provision shows that the court has got ample power to examine any person as a witness if in the opinion of the court, his examination is essential for just decision of the case. In the present case, though the learned trial Judge has referred Section-231 of the Cr.P.C. but in my view, mere mentioning of wrong section does not restrict the power of a trial Judge when the trial Judge has specifically been clothed with such power under section-311 of the Cr.P.C. It is specific case of the prosecution that the aforesaid witness had sustained injury and the learned trial judge has clearly observed that the examination of the aforesaid witness is essential for just decision of the case and therefore, in my view, this quashing petition is devoid of merit and there is no need to interfere with the impugned order and the impugned order can sustain with certain modification. In the aforesaid circumstance, this petition stands dismissed with modification to the impugned order that the learned trial Judge should examine the proposed witness namely, Mohan Yadav as court witness. A.K.Vishwakarma/- (Hemant Kumar Srivastava,J.)