IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3032 of 2010 ---- 1. Md.Talat Hashmi S/O Sarwat Hashmi 2. Ansarat Hashmi S/O Late Tarique Hashmi 3. Tamim Hashmi S/O Late Ismat Belal Hashmi All are residents of Village-Basant P.S. Bishanpur, Distict-Darbhanga. -- Petitioners. Versus The State of Bihar -- Opposite party. ----- 02. 29.01.2010 Being dissatisfied with the order dated 12.11.2009 passed by the learned Additional Sessions Judge-cum- Fast Track Court-II, Darbhanga in Sessions Trial No.179 of 1994, whereby he has declined to entertain the application under Section 311 of the Code of Criminal Procedure, the petitioner has preferred this application for setting aside the same and for issuing a direction to recall two witnesses. It is submitted by the learned counsel for the petitioners that the said two witnesses have deposed what they had not stated before the police under Section 161 of the Code of Criminal Procedure. In this context, I may refer with profit to the decision rendered in A.I.R 1991 Supreme Court 1346 wherein it has been held as follows: “It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish - 2 - its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall or re- examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. The very usage of the words such as „any Court‟, „at any stage‟ or „of any enquiry, trial or other proceedings‟, „any person‟ and „any such person‟ clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.” (Quoted from the placitum) Tested on the aforesaid enunciation of law, I am of the considered opinion that the present case is not one where recall of witnesses as envisaged under Section 311 should be allowed. - 3 - In the result, the application, being devoid of merit, stands dismissed. Sunil (Dipak Misra, C.J.)