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2012 DIGILAW 760 (PAT)

Raisul Azam v. State of Bihar

2012-05-10

ASHWANI KUMAR SINGH

body2012
JUDGMENT 1. Heard learned counsels for the petitioners and the State. 2. The petitioners have prayed for quashing of the order dated 7.4.2007 passed in Trial No. 1208/06 by which the learned S.D.J.M., Bettiah, West Champaran exercising his powers under Section 311 of the Code of Criminal Procedure directed the prosecution to examine some of the witnesses who were already examined earlier before the Court. The case arises out of a complaint in which upon inquiry being conducted a prima facie case was found to be made out under Section 498A of the Indian Penal Code. 3. The petitioners before this Court are the husband and in-laws of the complainant. The complainant and one another were examined before the court in terms of some sort of settlement arrived at between the parties outside the court. Subsequently, the complainant filed a petition before the court stating therein that there was a talk going on for settlement of dispute outside the court and in terms of assurance given by the accused persons, two of the prosecution witnesses deposed in terms of compromise. However, subsequently, the accused persons resiled from the terms of compromise arrived at between the parties and, thus, the complainant wanted that the prosecution witnesses who were already examined be recalled so that they may support the prosecution case. Taking into consideration the facts and circumstances of the case, the court below allowed the petition filed on behalf of the complainant-opposite party no. 2 and directed the witnesses already examined to be recalled and re-examined in the case. The said order is under challenge in the present case. 4. The scope and object of Section 311 of the Code of Criminal Procedure is to find out the truth and render a just decision in a pending proceeding. Section 311 of the Code of Criminal Procedure reads as under:- “311. Power to summon material witness, or examine person present.-Any 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.” 5. This section is manifestly in two parts. This section is manifestly in two parts. The word used in the first part is ‘may’ and the word used in second part is ‘shall’. In consequence, the first part is permissive and gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness, or (ii) to examine any person in attendance though not summoned as a witness, or (iii) to recall or re-examine to any person not examined. 6. The second part which is mandatory imposes an obligation on the court:- (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to just decision of the case. 7. This Section gives a wide discretion on the court to act as the exigencies of justice require. The section is expressed in a widest possible terms and do not limit the discretion of the court in any way. The second part of the section does not allow for any discretion but binds and compels the courts to take steps, if the fresh evidence to be obtained, is essential to the just decision of the case. 8. Considering the facts and circumstances of the case, in my view, the court below while passing the impugned order has committed no illegality and, as such, the application merits no consideration and the accordingly the petition stands rejected.