IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51734 of 2007 1. Diwakar Yadav, 2. Shambhu Kumar Yadav, Both sons of late Bhubneshwar Pd. Yadav, R/o village Naw Tolia Bindwasa, P.S. Kasim Bazar, District Munger ……. Petitioners Versus 1. The State of Bihar 2. Rajesh Kumar Yadav, Son of late Sukhdeo Prasad Yadav, R/o village Naw Tolia Bindwasa, P.S. Kasim Bazar, District – Munger …. Opp. Parties ------ For the Petitioners : M/s .Durgesh Nandan and Ram Sewak Choudhary, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : Mr. S.M.Shabbir Alam, Advocate O R D E R ----------- This application at the instance of the two named accused of Complaint Case No. 678(C) of 1998 is for the quashing of the order dated 27.9.2007 passed by Sri O.P.Pandey, Sessions Judge, Munger in Cr. Revision No. 140 of 2007, whereby he set aside the order dated 20.6.2007 passed by Sri P.K.Sinha, J.M, 1st Class, Munger in the said complaint case wherein he had dismissed the petition under section 311 Cr.P.C. filed by the complainant. The complainant, impleaded herein as O.P. No. 2, had filed the aforesaid complaint case alleging commission of various offences at the hands of the petitioners herein on the basis whereof cognizance was taken. 2 It has been submitted by the learned counsel for the petitioners that the impugned order had been passed on wrong assertions being made before the Sessions Court by the complainant wherein it was submitted that he had not taken opportunity under section 311 Cr.P.C. on earlier occasion. This would be apparent from the fact that he had earlier filed a petition on 23.8.2003 for recall of the witness and the same was rejected on 6.9.2003 by the trial court but Cr. Revision No. 390 of 2003 being preferred thereagainst the order of the trial court was set aside by order dated 22.9.2003 whereupon the petitioners moved this court in Cr. Misc. No. 286 of 2005 and the same was rejected by order dated 29.10.2004. It appears from the rejection order dated 20.6.2007 of the trial court that notwithstanding the dismissal of Cr. Misc. No. 286 of 2005 and opportunities given to the complainant to produce his witnesses, only one witness was produced and examined and thereafter the complainant’s evidence was closed on 15.4.2006 as no other witness was in attendance. On 15.6.2006 the complainant filed another petition under section 311 Cr.P.C. which was rejected by the trial court on the ground that the petitioner had already availed an opportunity under section 311 Cr.P.C. It appears from perusal of the impugned order dated 29.7.2007 of the Sessions Judge passed in Cr. Revision No. 140 of 2007 that the trial court had not given any finding regarding the change of date in order sheet dated 3.4.2006 and that the learned 3 A.P.P. had fairly submitted that when the next date was changed by the court below himself it should have been conveyed to the party and it was purely on this ground that the revision was allowed. The submission advanced by the learned counsel for the petitioners is that instead of giving a finding about bonafide of the court below rejecting the prayer for summoning witnesses under section 311 Cr.P.C. on the ground that the complainant had already availed of such a benefit on an earlier occasion and not having made use of it by reason whereof the complainant’s evidence was closed he could not again apply for similar benefit, the learned Sessions Judge decided the matter on another issue. It was further submitted that as a matter of fact neither in the cause list dated 3.4.2006 nor in the court diary is there any sign of interpolation and although the petitioners had requested for a certified copy of the court diary the same was not supplied since there was no provision to supply the same. Be that as it may it does not appear from the impugned order of the Sessions Judge as to whether he had called for the records of Complaint Case No. 678(C) of 1998 and the court diary as also the cause list of 3.4.2006 from the trial court and had perused the same before pronouncing the order. In that view of the matter the impugned order dated 27.9.2007 passed by the Sessions Judge, Munger, in Cr. Revision No. 140 of 2007 is hereby set aside and the matter is remitted back to the Sessions Court with direction to the Sessions Judge, Munger 4 to look into the case records, court diary and cause list dated 3.4.2006 and then give a finding regarding the change of dates without intimation to the complainant and thereafter pass orders in accordance with law. With the aforesaid directions to the learned Sessions Judge, Munger this application is allowed. The Patna High Court Dated the 17th April, 2009, Sanjay Pd. / A.F.R (Abhijit Sinha, J.)