JAWED ALAM @ BHUTTU Vs. STATE OF BIHAR

JUDGEMENT

(1.) In order to enable the court to find out the truth and render a just decision, the provision of Section 311 of the Code of Criminal Procedure (for short 'Cr.P.C.') are enacted wherein any court by exercising its discretionary authority at any stage of inquiry, trial or other proceedings can summon any person as witness or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; who are expected to be able to throw light upon the matter in dispute. The object of the provision, as a whole, is to do justice not only from the point of accused and the prosecution, but also from the point of an orderly society. Such power is neither exercised to fill up any gap in the prosecution evidence nor to give it any unfair advantage against the accused. The fundamental thing is that the power conferred under Section 311 of the Cr.P.C. should be invoked by the court only in the ends of justice. Such power is to be exercised for strong and valid reasons and should be exercised with caution and circumspection.

(2.) In the present case, the petitioner has challenged the order dated 09.01.2017 passed by the learned Additional District and Session Judge-12, East Champaran, Motihari in Session Trial No. 85 of 2015 whereby the petition dated 03.03.2016 filed on behalf the prosecution to permit it to examine the witnesses named in the FIR, was allowed.

(3.) Learned counsel for the petitioner has submitted that when the evidence was to be closed, on 03.03.2016, the prosecution filed an application to permit it to get examined three witnesses, namely, Md. Iliyas, Md. Ajam and Bipin Kuwar, as they were named in the FIR. He has submitted that such petition ought to have been rejected by the trial court in view of the fact that the investigating officer had not recorded the statements of the aforesaid three witnesses under Section 161(3) of the Cr.P.C. He has submitted that in absence of their statements being recorded under Section 161(3) of the Cr.P.C. being supplied to the accused in compliance with Section 207 of the Cr.P.C., the defence would be at an disadvantageous position in cross-examining them on the point of contradiction of statements before the police.