IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16475 of 2008 1. Govardhan Pandit 2. Laxmi Pandit @ Laxmi Narayan Pandit 3. Urmila Devi 4. Manju Devi 5. Sanju Devi -------------------- Petitioners Versus 1. State Of Bihar 2. Sanita Devi @ Sunita Devi --------------- Opposite Parties ---------------------------------- 4 13.10.2011 Heard learned counsel for the parties. By this application, petitioners have challenged the order dated 10.3.2008 passed by Sri S.P.Shukla, Judicial Magistrate, 1st Class, Banka in Complaint Case No. C266/2000, by which he allowed the petition of opposite party no.2 under section 311 Cr.P.C. Merit of the case is not relevant to be laid down as the matter in controversy is to exercise power under section 311 Cr.P.C. by a Magistrate. In the instant case, evidence of Complaint Case was earlier closed. Now prayer was made to examine (opposite party no.2) complainant as witness in presence and other witnesses on her behalf that is allowed that can be done under section 311 Cr. P.C. which runs as follows: 2 “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.” The provision made under above section is clear enough that the Magistrate is empowered to examine the witnesses whose evidence earlier was closed that is admitted to the parties also. It is said on behalf of petitioners that sufficient opportunity was given to the complainant to adduce/produce witnesses along with examining herself. The case reported in 2010(3)PLJR 713 cited on behalf of petitioners is specific on the point that if sufficient time was given no further opportunity can be given under section 311 Cr.P.C. Cases reported in (1) 1984 BBCJ 657 (2) 2009(2) PLJR 481 (3) 2006(1) PLJR 472 and (4) 2004(4) PLJR 406 are on the point that lacuna cannot be fulfilled exercising power under 3 section 311 Cr.P.C. The case reported in 2009(4) BLJ PHC-2 is on the point that power cannot be exercised for producing documents. Cases reported in 2010(1) PLJR 796 and 2011(1) PLJR 855 are the citations on behalf of petitioners in which circumstances of that case have been found sufficient not authorizing the Magistrate to give fresh opportunity to adduce evidence (witness). All the decisions cited by petitioners’ counsel are reported from Patna High Court. Learned A.P.P. opposed the submission. Power of trial court is interpreted by a Bench of Supreme Court in the case of Zahira Habibullah Sheikh vs State of Gujrat and others, reported in (2004)4 SCC 158 and 2006(3) SCC 374 by laying down that in first part of section 311 Cr.P.C. the trial court is empowered to summon the witness at any stage. Second part is mandatory portion, is not applicable in the case. Thus, it appears that it is for the trial court to exercise the discretionary power under section 311 Cr.P.C. Learned counsel further refers the case of Godrej Pacific Tech. Limited vs Computer Joint India Limited, reported in (2008) 11 SCC 4 108 in which a petition was filed under section 311 Cr.P.C. in which also prosecution evidence was closed even accused persons were examined under section 311 Cr.P.C. On the point of filling the loophole, paragraph 28 of the judgement shows that sometimes examination of witnesses may result in what is thought to be filling of loopholes that is purely a subsidiary factor and cannot be taken into account in all cases. The decision given in the case of Rajendra Pd. vs Narcotic Cell through its Officer-in-charge, Delhi, reported in AIR 1999 Supreme Court 2292 differentiates filling up lacuna and mistakes or laches in conducting the case and witnesses were allowed to re-examine. In the instant case, something more is in favour of opposite party no.2 that the trial court/Magistrate finds it a fit case to allow the complainant to examine herself and her witnesses limiting three days for summon allowing Rs. 250/- as cost for sustained loss. Thus, I find no illegality in the impugned order dated 10.3.2008 passed in Complaint Case No. C266/2000 by the trial court in allowing the complainant to examine herself 5 and her witnesses. Accordingly, this application is dismissed. AI/ A.F.R. ( Mandhata Singh, J.)