IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1893 of 2009 RAJA RAM RAI Versus THE STATE OF BIHAR ----------- 2. 9.4.2010. Heard Sri Jainendra Kumar Pushkar, learned counsel appearing for the petitioner and the learned A.P.P. for the State. The petition seeks quashing of order dated 23.9.2008 passed in G.R.No.3077 of 1992, Tr.No.2370 of 2008 pending on that particular date before Sri Rajesh Narain Sewak Pandey, Judicial Magistrate, Ist Class, Vaishali at Hajipur by which he directed the examination of Sub-Inspector, Nilambar Jha who was sought to be examined by the prosecution as his evidence appeared necessary for the just decision of the case. It appears that a petition to that effect was filed by the prosecution on 22.9.2008 and a time was granted to the accused, i.e., the petitioner for filing his replies to that petition by 23.9.2008 on which date the said witness Nilambar Jha was in attendance, but no reply was filed by the petitioner on the ground that the documents which were required for filing the replies were not available with him and as such, another prayer for adjournment was sought. The learned Magistrate after assigning the - 2 - reasons refused the prayer of seeking adjournment and went on to dispose of the petition directing the examination of the said witness who was present in court under Section 311 of the Cr.P.C. Section 311 of the Cr.P.C. reads as follows:- 311. 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.” On perusal of the above provision one may find that the provision is in two parts. The first part as regards deciding the question of examining a witness if it appeared essential for the just decision of the case was within the discretion of the Magistrate. But, as soon as he had decided the question that it was required that a particular person was to be examined as a witness for giving evidence in the case which appeared to the magistrate necessary for the justice decision of the case then it was mandatory for the court to proceed with the examination of such a person if he is in attendance in the court. - 3 - As may appear from the impugned order, the witness was always in attendance and a prayer was there for examining him. After perusing the record and hearing the parties, the learned Magistrate came to the conclusion that it was essential for the just decision of the case that Nilambar Jha be examined, as such, it became mandatory for him to examine him. While, I was perusing the impugned order, I found that the petitioner was simply attempting to dilate the proceedings in the court below and was not allowing it to proceed with the proceedings as per procedure. The dilatory tactics adopted by the petitioner appears extended up to this court by filing the present frivolous petition for which while dismissing the present petition, I impose a cost of Rs.1,000/- against the petitioner which shall be realized and deposited in the office of the District Legal Services Committee, Vaishali at Hajipur. Brajesh Kr. ( Dharnidhar Jha, J. )