Patna High Court
Pooja Kumari @ Puja Devi vs The State Of Bihar on 13 February, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.87415 of 2024
Arising Out of PS. Case No.-256 Year-2017 Thana- KOILWAR District- Bhojpur
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1. Pooja Kumari @ Puja Devi W/o Vinod Kumar, D/o Ramlal Ram R/o vill -
Kayam Nagar, P.s .- Koilwar, Distt.- Bhojpur
2. Ram Lal Ram S/o Late Baliram Ram R/o vill - Kayam Nagar, P.s .- Koilwar,
Distt.- Bhojpur
... ... Petitioners
Versus
1. The State of Bihar
2. Manish Kumar @ Munna S/o Ram Lal Ram R/o vill - Kayam Nagar, P.s .-
Koilwar, Distt.- Bhojpur
... ... Opposite Party
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Appearance :
For the Petitioner/s : Mr.Prabhat Kumar Singh, Advocate
Mr.Ganesh Pd. Singh, Advocate
Ms.Priya, Advocate
For the Opposite Party/s : Mr.Lalan Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 13-02-2025
Heard learned counsel appearing on behalf of the
petitioners and learned A.P.P. for the State.
2. Petitioner, in the present, case is seeking quashing of
order dated 18.11.2024 as passed by learned 5th Additional
Sessions Judge, Bhojpur at Ara in connection with Session Trial
No. 212 of 2019 arising out of Koilwar P.S. Case No. 256 of 2017,
whereby and whereunder learned court has allowed the application
of prosecution dated 28.07.2023 filed under section 231 of the
Code of Criminal Procedure (in short the 'Cr.P.C.') and directed the
prosecution to produce Purnima Kumari, who is not the charge-
Patna High Court CR. MISC. No.87415 of 2024 dt.13-02-2025
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sheeted witness.
3. It is submitted by learned counsel appearing for the
petitioners that recalling of witnesses under Section 231 of the
Cr.P.C. is not permissible for which exclusive provision under
section 311 of the Cr.P.C. is available and that too when it appears
to the court that examination of such witness is essential to the
just decision of the case and, therefore, the impugned order
appears bad in the eyes of law.
4. It would be apposite to reproduce Sections 231 and 311
of the Cr.P.C. for better understanding of the facts of the case,
which reads as under:
"231. Evidence for prosecution.--(1) On the date so
fixed, the Judge shall proceed to take all such evidence as
may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-
examination of any witness to be deferred until any other
witness or witnesses have been examined or recall any
witness for further cross-examination.
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.
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5. It would be further apposite to reproduce the impugned
order dated 18.11.2024 for better understanding of the case,
which reads as under:
"Addl. Sessions Judge Vth, Bhojpur, Ara
Sessions Trial No. 212 of 2019
ORDER
A petition dated 28.07.2023 was filed by the state
u/s 231 of Cr.P.C. for evidence of Purnima Kumari. Copy
was served to the Ld Counsel of defence.
Heard the argument of both sides. The Ld A.P.P.
agreed that the witness Purnima Kumari is an eye witness
of the case and she is a material witness of this case. Even
though her statement u/s 161 of Cr.P.C. was not recorded
and she is not a charge sheeted witness her evidence is
necessary for disposal of this case.
On the other hand the Ld counsel for the defence
stated that the prosecution is lieing to create evidence.
Almost all the charge sheeted witnesses have been
examined and now the prosecution is trying to produce
Purnima Kumari as witness because she lives with the
informant and they have tutored her.
Heard the contentions of both the parties. In the
written report the informant has stated that he left the
children with wife in room. P.W.4 has also stated that
deceased had three daughters who lived with her. P.W.3
the informant has stated that when his wife was killed, his
children were present at home with her. It is the solemn
duty of the court to let all the relevant evidence necessary
for proper decision of case to come on record. As far as it is
defence contention that they will be prejudiced is
concerned, they will get every opportunity to cross examine
the witness and extract the truth from the witnesses.
Hence petition dated 28.07.2023 is allowed.
Prosecution is directed to produce the witness on the next
date.
Dictated and corrected
Sd/-
Addl. Sessions Judge, Vth
Bhojpur, Ara."
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6. No doubt, a witness whose statement not recorded
during investigation under Section 161 of the Cr. P.C. or as such
not a charge-sheeted witness can be called for examination by
exercising power under section 311 Cr.P.C., if it appears to the
court that examination of said witness is essential to the just
decision of the case.
7. It also appears from the impugned order that the reason
for calling the witness was based upon the factual analysis as
deposed by PW-3 and PW-4 during the trial and also with an
excuse that the defence may get an opportunity to cross-examine
the witness. It is not the position of law. The law is very clear
through section 311 of the Cr.P.C. that it must appear to the court
that examination of such witness is essential to the just decision of
the case.
8. In view of the aforesaid facts, the impugned order dated
18.11.2024
passed by learned 5th Additional Sessions Judge,
Bhojpur, Ara in connection with Sessions Trial No. 212/2019
arising out of Koilwar P.S. Case No. 256 of 2017, is hereby
quashed and set-aside.
9. Accordingly, this application stands allowed.
10. However, it appears to the learned trial court that the
examination of any witness including this witness is essential for
Patna High Court CR. MISC. No.87415 of 2024 dt.13-02-2025
just decision of this case, same be taken note through proper
application, if moved under section 311 of the Cr.P.C., or it
appears to the court in accordance with law.
11. Let a copy of this judgment be sent to the learned trial
court/concerned court forthwith.
(Chandra Shekhar Jha, J)
Rajeev/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 13.02.2025
Transmission Date 13.02.2025
