Kumar Vs. State of Bihar & Ors  Insc 628 (28 November 2001)
Shah, B.N. Agrawal & Arijit Pasayat Shah, J.
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.
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.
were framed against the accused persons on 27.8.1993 for the offence punishable
under Sections 148, 149, 323, 449 and 302 IPC.
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.
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.
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.
on 12.5.2000 the State filed an application under Section 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.
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.
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.
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
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 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.
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.
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
PASAYAT) November 28,