[Cites 5, Cited by 0]
Patna High Court
Saddam Hussain vs The State Of Bihar on 12 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.32533 of 2025
Arising Out of PS. Case No.-413 Year-2022 Thana- KHAIRA District- Saran
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1. Saddam Hussain, S/o- Md. Shamim @ Mohammad Shamim@Md. Shamim
Alam Village- Chota Takiya, P.S.- Khaira, District- Saran, Bihar
2. Md. Nawshad Alam, S/o- Md. Shamim @ Mohammad Shamim Village-
Chota Takiya, P.S.- Khaira, District- Saran, Bihar
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Danish Sami, Advocate
For the Opposite Party/s : Mr. Kumar Veerendra Narayan, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
Date : 12-02-2026
Heard the learned counsel for the petitioners, learned
counsel for the opposite party no.2 and learned APP for the
State.
2. The present application has been filed by the
petitioners invoking the inherent jurisdiction of this Hon'ble
Court for quashing the order dated 24.01.2025 passed by the
learned Additional Sessions Judge-V, Saran at Chapra in Khaira
Patna High Court CR. MISC. No.32533 of 2025 dt.12-02-2026
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P.S Case No.413 of 2022 dated 13.11.2022 for the offence
under Section 302 read with Section 34 of the Indian Penal
Code.
3. The facts giving rise to the present case are that the
petitioners are accused of the murder of the father of the
informant along with others and they are facing trial in
connection with Khaira P.S. Case No. 413 of 2022. The said
case is running for evidence in the Trial Court and few
witnesses have also been examined. It is further stated that the
prosecution has adduced the informant of the case, namely, Md.
Perbej Alam as P.W. 5 and his examination-in-chief and cross-
examination were completed on 20.06.2024 and he was
discharged. Further, due to some technical issues, the petitioners
have changed their counsel and their new counsel suggested to
them that some important questions have been left to put before
the informant (P.W.5) during his cross-examination, for which
the petitioners filed a petition under Section 311 of the Cr.P.C.
on 02.12.2024, but the same was rejected by the learned Trial
Court on 24.01.2025. Hence, the present application has been
filed.
4. Learned counsel for the petitioner submits that after
the investigation the police submitted charge-sheet and the
Patna High Court CR. MISC. No.32533 of 2025 dt.12-02-2026
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charges were also framed and the trial commenced. Learned
counsel for the petitioner submits that during the prosecution
evidence, it was realized that the informant was examined as a
witness and was also discharged on 20.06.2024, but later it was
realized that the previous defence counsel of the petitioner did
not put essential questions to the witness and some relevant and
essential questions were left out and therefore realizing the
necessity in the interest of justice, an application under Section
311 of Cr.P.C. dated 02.12.2024 was filed before the learned
Trial Court. It has further been submitted that a rejoinder too
was filed by the prosecution and after considering the pleadings
of the parties, the learned Additional Sessions Judge was
pleased to reject the petition dated 02.12.2024 by order
24.01.2025
. Learned counsel for the petitioner submits that
contrary to the settled principal of law the learned Trial Court
has rejected the petition, saying that the questions which were
needed to be asked by the defence from the P.W.5, the
informant, have not been suggested. The learned counsel,
referring to the judgment rendered by the Hon'ble Supreme
Court in the case of Ritesh Tewari & Anr. vs. The State of U.P
& Ors. reported in AIR 2010 SC 3823 submits that the Hon'ble
Supreme Court has observed as under:-
"Every trial is voyage of discovery in
Patna High Court CR. MISC. No.32533 of 2025 dt.12-02-2026
which the truth is the quest. Therefore, power is
to be exercised with an object to subserve the
cause of justice and public interest and for
getting the evidence in aid of a decision and to
uphold the truth".
5. Learned counsel for the petitioner further relies
upon the case of V.N. Patil vs. K. Niranjan Kumar reported in
2021 (3) SCC 661 wherein the Hon'ble Supreme Court has
observed that :-
"The aim of every Court is to
discover the truth. Section 311 of Cr.P.C. is one
of such provisions which strengthen the arms of
a Court in its effort to unearth the truth except
where applications are filed as ab abuse of the
process of law. Such discretion will have to be
exercised by the Court".
6. It has, thus, been submitted that in view of the
settled principles of law, in the interest of justice, the application
filed by the accused petitioners ought to have been allowed and
the informant (P.W.5) should have been called for re-
examination.
7. Learned APP of the State has submitted that it is a
settled principle of law that Section 311 of Cr.P.C. should not be
filed in order to fill the lacuna of the prosecution case.
8. The learned APP further submits that the
Patna High Court CR. MISC. No.32533 of 2025 dt.12-02-2026
application itself shows that with the change of lawyer the
accused persons have been suggested by the new counsel that
certain questions were required to be put to the informant
(P.W.5) and therefore, the application was filed. It has, thus,
been submitted that such application only to fill the lacuna of
either party should not be permitted to be allowed and the
learned Trial Court was justified in rejecting such applications.
9. Having heard the learned counsel for the parties
and having gone through the pleadings made by the petitioners,
it is not disputed that P.W. 5, namely, Md. Perbej Alam, the
informant, was examined on 20.06.2024 and his evidence was
closed. It is also not disputed that the application under Section
311 was filed almost six months after the examination of P.W.5.
10. Before I proceed to consider the matter, it is
necessary to deal with the law relating to under Section 311
Cr.P.C. which reads as follows:
"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 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
Patna High Court CR. MISC. No.32533 of 2025 dt.12-02-2026
essential to the just decision of the case."
11. Form the above it is clear that Section 311 of
Cr.P.C. provides wide power to the Criminal Court to do the
following:-
"i. Summon any person as a witness, or
ii. Examine any person present in court,
though not summoned as witness, or
iii. Recall and re-examine any person
already examined."
12. The Hon'ble Supreme Court in the case of Girish
vs. State of UP reported in 2020 SCC OnLine All 1063 and in
the case of Veerendradas Bairagi vs. Shreekant Bairagi 2019
SCC OnLine MP 7006 the Court held that the subsequently
engaged counsel cannot seek one more opportunity as a matter
of right to further delay the matters. Rather the court held:-
"9. In the present case, it appears from
the application filed under Section 311, Cr.P.C. that
request for re-examination has been made solely
on the ground that Senior Counsel has been
engaged in place of a Junior Counsel as the Junior
Counsel, according to the petitioner, has not
conducted the cross-examination of witnesses in an
effective manner. However, in the light of the legal
position, as discussed above, it is certainly not
within the scope of section 311 Cr.P.C. to
Patna High Court CR. MISC. No.32533 of 2025 dt.12-02-2026
countenance such a prayer. No illegality or
perversity has been committed by the trial Court in
passing the impugned order."
13. In view of the aforesaid judicial pronouncements,
it is clear that the provisions of Section 311 Cr.P.C. should not
be allowed to be initiated only because with the change of
lawyer certain points which were relevant and were
inadvertently left out earlier would be put through cross-
examination.
14. To the understanding of this Court, calling of a
witness only because with the change of a counsel the parties
have been suggested by the new counsel that certain questions
were required to be put to the informant, who was initially
cross-examined and was released almost six months ago, should
be called only to put certain questions which were left out.
Initiation of the inherent jurisdiction of the High Court for
setting aside such orders where the application under Section
311 of the Cr.P.C. has been dismissed on the ground that no
question has been brought on the record by the defence which
needed to be put to the witness against whom the recall petition
has been filed would amount to interference of the Trial.
15. Thus, in view of the discussions made
hereinabove and the principles of law as enumerated above, I do
Patna High Court CR. MISC. No.32533 of 2025 dt.12-02-2026
not find any illegality in the order dated 24.01.2025.
16. The present application stands rejected.
(Sourendra Pandey, J)
manoj/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 20.02.2026
Transmission Date 20.02.2026
