LexSHAILENDRA KUMAR versus STATE OF BIHAR AND ORS.
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SHAILENDRA KUMAR v. STATE OF BIHAR AND ORS. NOVEMBER 28, 2001 [M.B. SHAH, B.N. AGRAWAL AND ARIJIT PASAYAT, JJ.] Criminal Trial : Trial ~f murder case-It is the duty of the Trial Judge to issue summons to the Investigating Officer, if witnesses.failed to remain present during trial ~f a case. Criminal Procedure Code, I973 : A B c Section 3 I I-Powers under-It empowers the Court to summon material witnesses though not summoned as witness and to examine or recall or re- D examine if their evidence appears to be essential to the just decision of the case-It is of very wide amplitude-Court could examine witnesses at any stage. Mother of the appellant was allegedly done to death by the accused E armed with lethal weapons and forming unlawful assembly. FIR was lodged against the accused persons. The case was taken up for trial and charges for the offence punishable under Sections 148, 149, 323, 449 and 302 I.P.C. were framed against the accused persons. The Sessions Judge after examining the formal witnesses closed the prosecution evidence on the ground that APP has not prayed for examin- ing other witnesses. The prosecution tiled an application for transferring the case from the Court of the said Sessions Judge, who had superannu- ated and the case was transferred to the Court of another Sessions Judge, who recalled the earlier order and directed the APP to produce the wit- nesses on the next date of hearing. The accused challenged it by tiling Revision Petition. The High Court allowell it on the ground that a criminal Court cannot recall its earlier order. F G State filed an application under Section 311 of the Code of Criminal H 371 A B c D E 372 SUPREME COURT REPORTS [200 I] SUPP. 5 S.C.R. Procedure for examining the witnesses. The Additional Sessions Judge rejected it. However, at the hearing, APP remained absent. The appellant- informant preferred Criminal Misc. Petition which was dismissed by the High Court. In this appeal, the said Order passed by the High Court was chal- lenged. The Officer-in-Charge of the Police Station submitted that he was never served with notice or summon by any Court of law or any other agency including APP. to bring the witness upto the trial Court. Allowing the appeal, the Court HELD : 1.1. In a murder trial it is sordid and repulsive matter that without informing the Officer-in-Charge of the Police Station, the matters were proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. It appears that accused wants to frustrate the prosecution by unjustified means and the Additional Sessions Judge as well as 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. It should be well understood that prosecution cannot be frustrated by such methods and victhn of the crime cannot be left in lurch. [374-G-H; 375-A-B] 1.2. Section 311, Cr. P.C. 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, be essential to the just decision or the case; that it is of very wide amplitude and if there is any negligence, p !aches or mistakes by not examining material witnesses, the Courts func- tion to render just decision by examining such witnesses at any stage is not, in any way, impaired. [375-C-D-F] Rajendra Prasad v. Narcotic Cell, [1999] 6 SCC 110, relied on. G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1218 of 2001. From the Judgment and Order dated 3.7.2000 of the Patna High·Court in Cr!. M. No. 16453 of 2000. H Ms. Kamakshi S. Mehlwal, for the appellant. SHAILENDRA KUMAR v. STATE [SHAH, J.] B.B. Singh and Shiva Pujan Singh for the Respondents. The Judgment of the Court was delivered by SHAH, J. Leave granted. 373 This appeal has been filed against the judgment and order dated 03. 7 .2000 passed by the High Court of Patna in Cr!. 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 A B by the accused by forming unlawful assembly who were armed with lethal C weapons. FIR was lodged with Bodh Gaya police station on 9.10.1991 against 15 named accused and 25 to 30 unknown persons. On 2
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