IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.10864 OF 2008 JAY PRAKASH SINGH, SON OF LATE RAM SINGH, RESIDENT OF VILLAGE NADIYAWA, POLICE STATION RAMGARH, DISTRICT LAKHISARAI VERSUS 1. THE STATE OF BIHAR 2. NAGESHWAR SINGH @ NAGO SINGH, SON OF LATE BAIJNATH SINGH, RESIDENCE OF VILLAGE NADIYAWAN, POLICE STATION LAKHISAZRAI (RAMGARH CHOWK), DISTRICT LAKHISARAI ………………………………………………………………………OPPOSITE PARTIES ******** 4 19/03/2010 Heard learned Counsel for the petitioner, the Opposite Party No. 2 and the A.P.P. appearing on behalf of the State. The petitioner has challenged the order dated 28.01.2008 by which the Court below has refused to allow the application filed under Section 311 of the Code of Criminal Procedure to recall Prosecution Witness Nos. 2, 3, 4, 5 and 6. The facts are that on 10.01.2008, an application was filed on behalf of the accused stating therein that he is very sick and he would not be able to appear before the Court and give instructions to his Counsel for the purpose of cross-examining the witnesses. Again, on 12.01.2008 a similar application was filed. The Court below refused to entertain or allow the application. On both the dates, the witnesses had appeared in Court and had been examined and discharged. However, due to the absence of the 2 petitioner, Counsel for the petitioner could not cross- examine those witnesses. I find that the attitude of the Court below is excessively strict. It could have allowed the examination and fixed a date of cross-examination of the witnesses within a reasonable period. In the circumstances, the order dated 28.02.2008 passed in Sessions Trial No. 35 of 2007 is quashed and the petitioner is granted leave to cross- examine the witnesses. Counsel for the Opposite Party No. 2 undertakes to produce the private witnesses on 15th April, 2010. The cross-examination should begin on 15th April, 2010 and will continue on day-to-day basis. As far as the cross-examination of the doctor is concerned, notices may be issued by the Court below forthwith, if the Court below finds that it is essential for the petitioner to cross-examine the doctor. The petitioner should appear before the Court of Additional Sessions Judge, Fast Track Court No. II, Lakhisarai along with a copy of this order on 01st April, 2010 in Sessions Trial No. 35 of 2007. On that date, the Court below will take steps for issuing notices for cross-examination of the doctor. In case, the doctor is able to come on any date 3 before 15th April, 2010, he should be cross-examine even prior to the cross-examination of the witnesses. This application is allowed with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J.)