IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20478 of 2011 Uma Shankar Singh Versus The State Of Bihar & Anr. ----------- 02. 11.07.2011 Heard learned counsel for the petitioner, State as also the Informant. Petitioner through this application under section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) prays for quashing the order dated 15.06.2011 whereby the petition filed by the petitioner under Section 311 of the Code was rejected after hearing the parties on the ground that similar such petition was filed on behalf of the petitioner which upon consideration was rejected by order dated 31st of March 2011 (Annexure-2) and the petitioner filed the petition second time for the same purpose for summoning the persons named in his petition as court witnesses for delaying the disposal of the trial. Learned counsel appearing on behalf of the petitioner submits that on perusal of the order dated 31st of March 2011, it would appear that earlier petition was rejected by the aforesaid order basically taking into consideration that at the material time the prosecution witnesses were being examined and it is for the prosecution to decide which witnesses has to be examined to prove the charges. It is further submitted 2 that since at the material time prosecution witnesses were being examined and as such, petitioner did not agitate against the said order dated 31.03.2011 with the hope that prosecution may examine those witnesses whose names have been mentioned by the petitioner in his petition. However, when the prosecution did not examine further witnesses, petitioner filed a petition as contained in Annexure- 3. It is further submitted that rejection of the petition by the impugned order dated 15.06.2011 is incorrect, illegal and not justified, and as such, the same deserves to be quashed. Learned counsel appearing for the State as also Mr. Akhileshwar Prasad Singh for the informant submits that the impugned order does not suffer from any illegality calling for interference. It is further submitted that on perusal of the provisions of Section 311 of the Code, it would appear that primary object behind the aforesaid provision is that in course of the trial the learned court if at any stage is of the opinion that it is essential for the just decision of the case, may summons any person for his examination as witness in the trial. It is further submitted that neither the prosecution nor the defence can substitute their own witness if any, as a court witness as such, the petition filed by the petitioner which on detailed consideration was rejected by the order 3 dated 31st of March 2011 (Annexure-2) clearly observing that summoning of any witness under Section 311 of the Code of Criminal Procedure is in the judicial discretion of the court to examine any witness if it appears essential for the just decision of the case, as such, the petition filed by the petitioner was rejected. Mr. Singh appearing for the informant further submits that in this case prosecution case was closed and the accused persons have been examined under Section 313 of the Code of Criminal Procedure and now the next stage would be entering into the defence. At this stage, it is always open for the defence to make a request to the court for examination of any person for his defence and as such, the petition filed by the petitioner is merely to delay the pending trial. Considering the rival submissions of the parties, it appears that prayer of the petitioner for summoning certain persons as named in the petition for examination which was disposed on a detail consideration by order dated 31st of March 2011, the court while passing the order considered the stage of the examination of the prosecution witnesses as also the circumstances in which the discretion of the court could be exercised for summoning any person as a court witness. The learned court below while considering the 4 petition was of the view that the examination or non- examination of the witness by the prosecution is the matter to be decided by the prosecution. However, in the interest of justice the court at any stage can summon any person as a witness or recall and re-examine any witness if it appears essential for the just decision of the case. That discretion has to be exercised by the court at any stage considering the necessity and the materials available on the record. In the case in hand the prosecution has closed its evidence and the petitioner has been examined under Section 313 of the Code. Now, at the stage for entering upon defence, it will be open for the accused persons to adduce any evidence in his support or apply for issue of process for the attendance of any witness. The court hearing the trial and upon due consideration if it appears that the prayer is reasonable and justified may issue the process. In view of the above considerations and discussions, I do not find any merit in this application, the same is accordingly dismissed. Jagdish/ ( Shailesh Kumar Sinha, J.)