IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38492 of 2008 RASHEED ALAM, SON OF AKHTAR HUSSAIN, RESIDENT OF VILLAGE SAHBAR PUR PURAINA, P.S. PATEPUR, DISTRICT VAISHALI. --- PETITIONER Versus THE STATE OF BIHAR THROUGH C.B.I. --- OPPOSITE PARTY For the Petitioner :- Mr. L.B. Singh, Advocate For C.B.I. :- Mr. Bipin Kumar Sinha, SC/C.B.I. ----------- 4 11.1.2010 Petitioner being aggrieved with the order dated 18.8.2008, passed by the Special Judge, C.B.I. North Bihar, Patna in Special Case No. 24 of 1997, filed this application on the ground that the trial could not have allowed the prosecution to recall P.W. 10, once his evidence had closed. The petitioner is facing trial in Special Case No. 24 of 1997. The allegation against him is that P.W. 10 Sri Devendra Prasad Sinha filed a written report that the petitioner who was a Clerk-cum- Cashier in the State Bank of India, Sumergunj Branch was demanding a bribe for getting a loan approved. Sri Devendra Prasad Sinha P.W. 10 was examined on 20.4.2007. The cross examination began on 8.5.2007 and was closed on 11.1.2007. During cross examination P.W. 10 made certain statements which were contrary to what had been stated in his Chief. Specifically the statement made at paragraph 29 wherein he states that “lh ch vkbZ iqfyl ds le{k eSaus c;ku ugha fn;k Fkk” and paragraph 37 wherein P.W. 10 says “jlhn vkye mDr cSad esa fyfid ds in ij FkkA jlhn vkye dks _.k Lohd`r djus esas dksbZ gkFk FkkA mldk dksbZ vk/kkj Lohd`r djus esa ugha FkkA” The prosecution filed a petition in which a prayer has been made that since P.W. 10 has not supported his statement made in 2 Chief it would be in the interest of justice that the prosecution may be allowed to cross examine the witness declaring him to be hostile. The Court below had granted permission to the prosecution to cross examine him only on the point of hostile conduct of this witness. Counsel for the petitioner has objected to the petition and submits that the prosecution has filed this application for recalling P.W. 10, so that they may cure the lacunas in the case. It is submitted that P.W. 10 is an important witness, as he was the man who had made a complaint against the petitioner and the Branch Manager, his statements gives a blow to the prosecution version and the prosecution cannot seek clarifications of the statements made which go against the prosecution version. It is submitted that if P.W. 10 is allowed to be reexamined, the petitioner will be prejudiced. Section 311 of the Code of Criminal Procedure 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. (i) Power of Court to recall any witness or witnesses already examined or to summon any witness can be invoked even if the evidence in both sides is closed so long as the Court retains seisin of the criminal proceedings: Mohanlal Shamji Soni v. Union of India, (1981) 1 Crimes 818 (SC): (1991) Cr LJ 152 (SC). (ii) Any person can be summoned as witness or recalled or re-examined at any stage of proceeding where essential; Mohanlal Shamji Soni v. Union of India, (1991) GLJ 1521 (SC): (1991) 1 Crimes 818 (SC). (iii) It is crystal clear that the Court has been empowered to summon any person as a witness at any stage of inquiry, trial or 3 other proceeding. The power is not confined to any particular class of person; Heeralal v. State of Madhya Pradesh, (1997) 2 Crimes 634 (MP). (iv) It is settled in law if the conditions under this section are satisfied the Court can call a witness not only on the motion of either the prosecution or the defence but also it can do so on its even motion; Heeralal v. State of Madhya Pradesh, (1997) 2 Crimes 634 (MP). (v) The discretion vested in the Court under section 311 is to be exercised judicially and not arbitrarily; Raghunath Prasad v. State of Rajasthan, (1997) 3 Crimes 86 (Raj). Scope of Section 311 envisages that the Court can at any stage summon a person and examine or re-examine him if the Court feels that it is essential to the just decision of the case. As stated above the prosecution in this case has filed an application for re- examination of witness on certain aspects of the matter. The evidence of P.W. 10 began on 24.2.2007. He was not declared hostile at that stage. Thereafter he was cross-examined on 12.6.2007, 21.6.2007, 10.7.2007, 18.9.2007 and his evidence was closed on 1.11.2007. The application was filed on 1.11.2007. In this case the question is not when the application has been filed rather in order to declare a witness hostile, the prosecution ought to have done so after his examination- in-chief or before closing of his evidence. The prosecution can certainly not be permitted to recall the witness for drawing his attention to the statements made which are contrary to the prosecution case as it would amount to filling up the lacuna in the prosecution version and would prejudice the petitioner. It is well settled that in a criminal prosecution when a witness is cross examined and he contradicts certain statements made earlier it is for the judge to consider whether the contradictions 4 thoroughly discredit the witness or whether his evidence can be partly believed in the light of the other evidence on the record. It is up to the Court or a counsel to show that the testimony is credit worthy and should be read as a whole and as such this option would always be available to either party during the course of trial. The order impugned is illegal and improper and I do not find that there is any justifiable reason for allowing the prosecution to re-examine P.W. 10 much less allow P.W. 10 to be re-examined to clarify any statement made by him during the cross-examination. I, therefore, set aside the order dated 18.8.2008 passed in Special Case No. 24 of 1997 pending before the Special Judge, C.B.I. North Bihar, Patna. This application is thus allowed. Sanjay (Sheema Ali Khan, J.)