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CASE NO.:

Appeal (crl.) 1218 of 2001

PETITIONER:

SHAILENDRA KUMAR

Vs.

RESPONDENT:

STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT: 28/11/2001

BENCH:

M.B. Shah, B.N. Agrawal & Arijit Pasayat

JUDGMENT:

Shah, J.

Leave granted.

This appeal has been filed against the judgment and order dated

03.7.2000 passed by the High Court of Patna in Crl. Misc. No.16453

of 2000 confirming the order dated 2.6.2000 passed by the Additional

Sessions Judge, Gaya.

It is the contention of the appellant that his mother was done to

death by the accused by forming unlawful assembly who were armed

with lethal weapons. FIR was lodged with Bodh Gaya police station

on 9.10.1991 against 15 named accused and 25 to 30 unknown

persons. On 27.8.1993 the case was taken up for trial by the 5th

Additional Sessions Judge, Gaya in Sessions Trial No.24 of 1993.

Charges were framed against the accused persons on 27.8.1993 for the

offence punishable under Sections 148, 149, 323, 449 and 302 IPC.

After examining two or three formal witnesses, the learned

Sessions Judge closed the evidence of prosecution on the ground that

APP has not made any prayer either oral or written for adjournment or

for examining other witnesses. The prosecution evidence was

declared to have been closed and the matter was fixed for recording

the statement of accused.

Thereafter, the prosecution filed an application for transferring

the case from the Court of 5th Addl. Sessions Judge. However, the 5th

Addl. Sessions Judge was superannuated and the case was transferred

to 2nd Addl. Sessions Judge, Gaya, who by his order dated 20.9.1995

was pleased to recall order dated 3.9.1994 passed by the 5th Addl.

Sessions Judge, Gaya by which the prosecution evidence was directed

to be closed. He also directed the APP to produce the witnesses on

the next date of hearing.

That order was challenged by the accused by filing Criminal

Revision No.530 of 1995 before the High Court of Patna. The High

Court vide its order dated 1.2.2000 allowed the revision application on

the ground that it is well settled that criminal court can not recall his

earlier order.

Again on 12.5.2000 the State filed an application under Section

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311 of Code of Criminal Procedure before the Addl. Sessions Judge,

Gaya for examining the witnesses. That application was rejected by

order 2.6.2000 on the ground that application by the State has no

meaning in view of the order passed by the High Court in revision

application. At the time of hearing of that application, APP remained

absent. Thereafter, the appellant-informant preferred Criminal Misc.

No.16453 of 2000 before the High Court. That application was also

dismissed by impugned judgment on the ground that it was not proper

for the High Court to interfere with the order passed by the Sessions

Judge. That order is challenged by filing this appeal, wherein it has

been contended that the previous order passed by the High Court on

dated 1.2.2000 is on the face of it illegal, erroneous and against the

provisions of Cr.P.C.

In counter filed by officer-in-charge of Bodh Gaya Police

Station, District Gaya, it has been pointed out that the concerned

Investigating Officers, at present, are not posted at Bodh Gaya Police

Station and even in other police stations within the District of Gaya.

He specifically states, it is submitted that he was never served with

notice or summon or in no way communicated by the Court of law or

any other agency including A.P.P. to bring the witness up to the trial

court. He also stated that after perusing the entire relevant record

and registers at the office of Bodh Gaya police station, Gaya he has

not found any summon or any sort of notice concerning the case under

reference received by his office. In paragraph no.9, he has clarified

that after investigation it was found that summons were issued against

witnesses no.1 to 3 through Nazir of Civil Court, Gaya but

surprisingly enough the said summons were never moved to the police

station Bodh Gaya. It is his further say that if opportunity is given,

the witnesses named in the charge-sheet could be brought before the

court either by issue of notices or summons and he will make his best

efforts to produce the witnesses before the concerned court within

reasonable time.

In our view, in a murder trial it is sordid and repulsive matter

that without informing the police station officer-in-charge, the matters

are proceeded by the Court and by the APP and tried to be disposed of

as if the prosecution has not led any evidence. From the facts stated

above, it appears that accused wants to frustrate the prosecution by

unjustified means and it appears that by one way or the other the

Addl. Sessions Judge as well as the APP have not taken any interest in

discharge of their duties. It was the duty of the Sessions Judge to

issue summons to the investigating officer if he failed to remain

present at the time of trial of the case. The presence of investigating

officer at the time of trial is must. It is his duty to keep the witnesses

present. If there is failure on part of any witness to remain present, it

is the duty of the Court to take appropriate action including issuance

of bailable/non-bailable warrants as the case may be. It should be

well understood that prosecution cannot be frustrated by such methods

and victims of the crime cannot be left in lurch.

Learned counsel for the respondent-accused however submitted

that in this case there is no question of referring to Section 311

Cr.P.C., in view of earlier order dated 1.2.2000 passed by the High

Court setting aside the order dated 20.9.1995 passed by the Additional

Sessions Judge recalling the order dated 3.9.1994 by which the

prosecution evidence was declared to have been closed. This

submission is without any substance. Section 311 empowers the

Court to summon material witnesses though not summoned as witness

and to examine or recall and re-examine if their evidence appears to it

to be essential to the just decision of the case. It reads thus:-

311. Power to summon material witness, or

examine person presentAny Court may, at any stage

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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.

Bare reading of the aforesaid section reveals that it is of very

wide amplitude and if there is any negligence, latches or mistakes by

not examining material witnesses, the Courts function to render just

decision by examining such witnesses at any stage is not, in any way,

impaired. This Court in Rajendra Prasad vs. Narcotic Cell [(1999) 6

SCC 110] observed, After all, function of the criminal court is

administration of criminal justice and not to count errors committed

by the parties or to find out and declare who among the parties

performed better.

In this view of the matter, appeal is allowed. Impugned order

passed by the High Court confirming the order dated 2.6.2000 of

Additional Sessions Judge, Gaya is set aside. Application filed by the

State under Section 311 Cr.P.C. is allowed. The Sessions Judge is

directed to proceed with the matter on day to day basis by strictly

adhering to Section 309 Cr.P.C. and directing the officer-in-charge of

police station Bodh Gaya to keep witnesses present in the court for

their examination.

..J.

(M.B. SHAH)

..J.

(B. N. AGRAWAL)

..J.

(ARIJIT PASAYAT)

November 28, 2001.