TARKESHWAR UPADHYAY Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Sri Awadhesh Kumar Mishra, learned counsel for the petitioner, Sri Jharkhandi Upadhyay, learned A. P. P. for the State and Sri Rajendra Narayan, the learned counsel for the O.P. No. 7.

(2.) THE petitioner is aggrieved by order dated 26.8.2004 passed in Criminal Revision No. 105 of 2003. by Sri R.S. Roy, the learned IVth Additional Sessions Judge, Siwan whereby and whereunder he set aside the order dated 9.4.2003 passed by Sri 0. Kamdulana, learned Executive Magistrate, Siwan in Case No. M -1592/98, Tr. No. 37/2003 in a proceeding under Sec. 145. Cr.P.C. whereby he has recalled Tarkeshwar Upadhyay under Sec.311 Cr.P.C. for further cross -examination.

(3.) I am unable to agree with the submissions of the learned counsel for the petitioner. It appears that the evidence of the 1 st party was closed on 30.4.2002 and after the second party had adduced the evidence case was fixed for arguments. At this point of time there was no requirement for the learned Executive Magistrate to have acted under the provisions of Sec.311 Cr.P.C. to recall witness Tarkeshwar Upadhyay for his evidence. Court should remember that the purpose of the power under 311 Cr.P.C. is not to enable one party or the other to fill up gaps in his case and to improve it by new matter at a late stage. The fault lay when the first party in not attending the court for such a long period after his partial cross -examination. In that view of the matter the order of the learned Additional Sessions Judge is fully justified.