Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1839 (PAT)

Binod Singh v. State of Bihar

2007-11-29

body2007
ORDER Heard. 2. The petitioners are being tried in Sessions Trial No. 74 of 2005 for an offence under Section 302 etc IPC. The prosecution did not choose to examine four witnesses cited in the charge-sheet. The petitioners filed a petition before the court below requesting to examine the four witnesses not examined by the prosecution under Section 311 of the Cr.P.C. The court, i.e., Fast Track Court-III, Buxar refused doing that, by assigning reasons that in spite of having taken every steps the witnesses could not appear and the court did not want to examine them in the case as it did not appear that their evidence was necessary for the just decision of the case. 3. On a perusal of the provisions of Section 311 of the Cr.P.C. one could very well find that the Section is in two parts. The first part vests discretion in any court of examining any witnesses or any person in attendance in court at any stage of any enquiry, trial or other proceedings. The provision further vests a discretion of this court of summoning such a witness or person, or recall and re-examination any person. The discretion is dependent upon the opinion of the court that the examination of witnesses/persons was essential to the just decision of the case. The other part of the provision indicates that if the court had decided to exercise its discretion of examining a witness or any person in attendance or to summon or recall any witness already examined for re-examination, then it must summon such a witness and examine him. The very use of the words ‘may' in the first part of the Section and "shall' in the later part of the Section could indicate the distinction between the powers and duties of the court under Section 311 of the Cr.P.C. The first part of the Section creates a discretionary jurisdiction in the court, only when it has decided to act for the just decision of the case and finding it essential to do so. If the court does not find that it was essential so to do as indicated above, there is no obligation upon the court to examine any witness or a person. The court has given reasons and above all the prosecution has a liberty to examine a particular witness or not to examine a witness. Petition appears of no merits, is dismissed.