IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34411 of 2007 ARUN KUMAR SRIVASTAV SON OF AYODHYA PRASAD RESIDENT OF VILLAGE HURKA P.S. TILOUTHU DISTRICT ROHTAS. …PETITIONER Versus 1. THE STATE OF BIHAR 2. AMBIKA MAHTO 3. RAJENDRA MAHTO, BOTH SONS OF MOSAFIR MAHTO RESIDENT OF VILLAGE RAMDIHRA P.S. TILOUTHU(SASARAM) ROHTAS 4. MOSAFIR MAHTO SON OF LATE MAGHAN SINGH RESIDENT OF VILLAGE RAMDIHRA P.S. TILOUTHU(SASARAM) ROHTAS. …OPPOSITE PARTIES For the Petitioner : Mr.A.K.Thakur & : Mr.Rathunandan Kr. Singh For O. P.Nos.2 to 4 :Mr. Vinay Kant Mani Tripathi & : Mr.Subhash Kr. I For the State :Mr.J.Upadhyay,APP ----------- 11. 09.08.2010 Heard counsel for the parties. Petitioner is the informant/complainant of the case and is raising a grievance with respect to the order dated 18.05.2007, passed in S.T.No.142/03. By this order, the application of the complainant to summon the doctor and the I.O. of Tilouthu(Sasaram) P.S.Case no.45/99 has been considered and rejected. Let it be recorded here that the petitioner now confines his application only in respect of the doctor who is said to have examined the injured(s) of his injury. Brief background of facts need to be set out. Petitioner filed the aforesaid FIR against a set of accused persons including opposite parties herein alleging therein that on the date of occurrence while he was going on a motor cycle along with two other persons, 2 they noticed a tractor passing through the road. They took over the said vehicle but was only to be surrounded by the accused persons named therein who were armed with diverse weapons. It is alleged that the accused persons tried to stop them at gun-point and when the informant tried to escape from the place of occurrence, a fire was shot causing injuries to his brother and one Ramadhar Ram. The investigation was taken up whereafter a final report seems to have been submitted whereby the accuseds were not sent up for trial. During the pendency of investigation, the informant lodged a protest- cum-complaint petition (Annexure-1) which was kept on record. It appears that learned court below treated the same as the complaint wherein petitioner/complainant was examined on S.A. followed by examination of two witnesses. Finding prima facie material against the accused persons, cognizance was taken and subsequently the case was committed to the court of sessions. During trial, witnesses were examined on behalf of complainant to bring home the charges. It appears that an application was filed on 28.03.2007 for issuing summons for examination of the doctor (Dr.S.K.Sinha) and the Sub- Inspector of Police. As noticed above, the petitioner before this Court has fairly stated that he shall not be pressing this application so far as the request for summoning the I.O. is concerned. Learned trial court on a consideration of materials on record and after hearing both sides, rejected the application on the ground that the doctor has not been cited as a witness in the complaint and that there was no injury report available in police records. While assailing the sustainability of the order, learned 3 counsel for the petitioner submits that while considering the case of the petitioner the materials that have been collected or not collected in course of investigation are extraneous consideration. The prosecution cannot rely on those materials. It is contended that in course of his statement made on S.A. the petitioner had already disclosed the name of the doctor who treated the injured of their injuries at Tilouthu. It is contended that the prosecution should have been given fair opportunity to prove its case by producing witnesses. Learned counsel referring to complaint, submits that in the column of witnesses names of certain witnesses have been cited and it is stated therein that names of some more witnesses will be supplied subsequently. It is thus the contention of the petitioner that whole purpose of section 311 Cr. P.C. is to give fair opportunity to the parties in order to come to a just conclusion at the trial. Learned counsel for the opposite parties, on the other hand, supports the impugned order. It is contended that the case diary does not contain any injury report furnished by any doctor. He, however, admits that materials that were available with the police papers were extraneous and the court cannot refer to those documents. It is submitted that in absence of any injury report attached with the complaint the order refusing to summon the doctor was justified in law. I have considered the submission advanced on behalf of the parties and perused the materials on record. It is an admitted position at the Bar that materials collected in course of investigation by the police are extraneous and thus not relevant. The trial court 4 cannot refer to and rely upon any of the documents available therein. However, considering the case of the informant/complainant that in course of occurrence injuries were sustained by two persons who were treated of their injures at Tilouthu and also the fact that name of the doctor has been disclosed on S.A.. this Court is satisfied that the court below ought to have allowed the application of the petitioner in so far as the same relates to summoning of the doctor. Summoning of the doctor in my view, shall not cause any prejudice to the accuseds as they shall have ample opportunity to cross examine him with reference to their defence. In that view of the matter I am inclined to interfere with the order. Accordingly the order dated 18.05.2007, passed by learned 1st Asstt. Sessions Judge (CJM), Sasaram in Sessions Trial No.142/03 is hereby quashed and set aside. The petitioner shall produce a copy of this order within three weeks in the court below along with an application. The court below shall issue summon for appearance of the doctor who shall be examined and cross-examined in accordance with law. The application is accordingly allowed. hr ( Kishore K. Mandal )