IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1304 of 2008 1. MOHAN SINGH, SON OF ASHOK SINGH, RESIDENT OF VILLAGE KONCHI, P.O. + P.S. GURARU IN THE DISTRICT OF GAYA. 2. RAGHVENDRA KUMAR, SON OF KAMESHWAR SINGH, RESIDENT OF VILLAGE MUGALAHI, P.S. GOH IN THE DISTRICT OF AURANGABAD. ………………………………………………………...PETITIONERS. Versus THE STATE OF BIHAR……………………….OPPOSITE PARTY. ----------- For the Petitioners : Mr. Dinu Kumar, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------- O R D E R The two petitioners against whom Gaya(Kotwali) P.S. Case No.49 of 2003 was registered and have been put on trial for charges under Sections 25(1-B)A, 26 and 35 of the Arms Act have filed this application for quashing of the order dated 13.12.2007 passed by the learned Sessions Judge, Gaya, in Criminal Revision No.121 of 2007 whereby he while dismissing the revision has upheld the order dated 26.06.2007 passed by Sri Om Sagar, the learned Judicial Magistrate, First Class, Gaya, in the aforesaid P.S. Case, whereunder he had allowed the petition filed by the prosecution under Section 311 Cr.P.C. to examine three prosecution witnesses. It appears that charge was framed against the petitioners on 22.3.2004 whereafter only three prosecution witnesses were examined. Dasti was received by the prosecution for production of the remaining witnesses including the three sought to be examined. It - 2 - further appears that after affording reasonable opportunity and undue indulgence, the prosecution evidence was finally closed on 24.2.2006 and the statement of the accused under Section 313 Cr.P.C. came to be recorded on 3.3.2006. Thereafter the arguments of both sides was heard on 13.11.2006 and even as the trial remained pending for judgment on 22.11.2006 the prosecution filed a petition praying for permitting the examination of the informant, S.I. Sudama Yadav, S.I. Ajay Singh, R.S.N.B.P. Gupta and the seizure list witnesses who could not be examined earlier and as their examination was essential for a just decision in the case which was allowed by the Magistrate by his order dated 26.6.2007. Assailing the impugned orders of the courts below it was sought to be submitted that by allowing the petition under Section 311 Cr.P.C. after closure of the arguments was to permit the prosecution to fill up the loopholes and lacunae in the prosecution which was neither warranted nor permissible in law. In this connection it was sought to be submitted that the prosecution had neither mentioned why the examination of these witnesses was essential nor was it disclosed why they could not be examined earlier which according to the learned counsel were the mandatory requirement in law for reopening a case. It was further submitted that if the orders of the courts below were allowed to remain the same would amount to an abuse of the process of the court and would percolate injustice. Section 311 Cr.P.C. by employment of the word “any” throughout its length confers wide discretion on the court, whether - 3 - original, appellate or revisional, to act as the exigencies of justice would require. Admittedly, the requirement of just decision would not limit the exercise of the wide power only in the interest of the accused only but may also extend to the benefit of the prosecution (See Jamatraj Vs. State-AIR 1968 SC 178). The primary object of the section is to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just decision of the case. It is perhaps in this sense that the section employs the word “shall” in the last part of the section making that part mandatory. It is entirely for the court to decide and no party can insist thereupon. The specific stand of the petitioners is that the prosecution had received dasti for its witnesses and notwithstanding, it did not produce its witnesses. Chapter VI of the Code of Criminal Procudure deals with process to compel appearance and Section 62 Cr.P.C. assumes prime relevance. In this connection, Chapter II Part I of the Civil Court Rules framed by the Patna High Court laying down the process of service of summons are required to be followed. Dasti is not one of the modes provided therein. It is not the case of the petitioners that the summons by the court having been validly served on the witnesses they failed to appear in court for their evidence. It is in this background that the orders of the learned Magistrate as also the Revisional Court must be held to be legal and valid. The evidence of the I.O., the Sergeant Major and the seizure list witnesses were required to arrive at a just decision in the case and - 4 - I am of the definite opinion that no illegality was committed by any of the courts below. Accordingly, I find no merit in this application which is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 6th day of May, 2009. Pradeep Srivastava/A.F.R.