IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30888 of 2011 Bachcha Yadav Versus The State Of Bihar ----------- For petitioner:- Mr. Rakesh Kumar Jha, Advocate 2/ 19-09-2011 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor. Petitioner is aggrieved by an order dated 17.08.2011 whereby and whereunder the prayer of the petitioner has been rejected by learned lower court in connection with Sessions Trial No.185/2005/268/2005. The dispute arose on account of production of Arvind Yadav as a prosecution witness whose name does not find place in the charge-sheet, he was not examined by the I.O. during the course of investigation under Section 161 of the Cr.P.C. though his presence happens to be in the written report. Learned counsel for the petitioner submits that he does not challenge the power of the court in examining Arvind Yadav as a witness but before that, the simple submission is that all the C.S. named witnesses should be exhausted at first count and then thereafter the prosecution should have prayed for permission to produce those witnesses which should be under the garb of Section-311 of the Cr.P.C. So submitted that that the order at the present stage appears to be contrary to law as well as pre-judicial to the interest of the accused. 2 On the other hand, learned APP opposed the prayer and submitted that the Court had exercised its power which happens to be vested in accordance with law. Without discussing more and taking into account the stage of the case, Section 226 of the Cr.P.C. speaks with regard to an obligation having put over shoulder of prosecution to narrate and disclose by which evidence, he is going to prove the charge against the accused. Surprisingly, the name of the witness does not find place. Not only this, though Section 311 empowers the court to examine any material witness having bearing over the case for the just decision of the case, the exercise should be adopted not by surprise to the adversary. Without having any order on this score at an earlier occasion, the production of witness and examining without having formal permission, appears to be a mistake on the part of the learned lower court. The third happens to be, in the facts and circumstances of the case, learned lower court should have given an opportunity under Sub-section (2) of Section 231 of the Cr.P.C. deferring the cross-examination of this PW, Arvind Yadav to some other date or after examining of the remaining witnesses. How Section 231 (2) empowers the court, for which it is being reproduced below:- “ the Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recalled any witness for further examination”. 3 Thus, taking into account the aforesaid provision of law, the order impugned appears contrary to the law and is, accordingly, set aside. Consequent thereupon, petition is allowed. The matter is remitted back to the learned lower court to proceed over the issue afresh in accordance with law. Let this order be faxed at the cost of the petitioner to the concerned court. perwez (Aditya Kumar Trivedi,J.)