(1.) THE petitioner who is the sole accused in Motihari Town P.S. Case No. 91 of 1985 has prayed for the quashing of the order dated 19.9.2007 passed therein by Sri S.K. Srivastava, Judicial Magistrate, Motihari, by which he has allowed the petition of the prosecution filed under Section 311. Cr.P.C. to bring on record certain documents and mark them as exhibits for a just decision in the case.
(2.) The law on the issue remains well settled by the decision in Nesar Ahmed @ Nasser V/s. The State of Bihar reported in 2007(1) PLJR 216 two paragraphs whereof are very relevant and requires to be quoted with approval. Section 311 of Cr.P.C. consists of two parts i.e. (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution - that the discretionary powers should be invoked as the exigencies of justice require, and exercised judicially with circumspection and consistently with the provisions of the Code. Therefore, this power has to be exercised in exceptional case or extraordinary situation. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case. What calls for pointed attention is the language of Section 311 of Cr.P.C. What the Section says is that the court may "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" (underling is mine for emphasis). Therefore, what Section 311 of Cr.P.C. talks of is the evidence of the witnesses and evidence would mean material evidence and does not include documentary evidence.
(3.) IN the instant case while the case was at the stage of advancing arguments a petition under Section 311 Cr.P.C. was filed on 7.6.2007 along with certain attested copies of documents for being marked as exhibits which purportedly were necessary for a just decision in the case and it was prayed by petition dated 18.7.2007 to recall P.W. 3, Shashidhar Prasad Sinha, who had been examined earlier by the Court on 17.2.2000, being fully acquainted with the documents in question, to be recalled for proving the same.