(2025:JHHC:16979) 1 Cr.M.P. No.1407 of 2025 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1407 of 2025 Sunil Kumar Yadav, aged about 23 years, son of Suresh Yadav, resident of Village-Akauna, P.O. & P.S.-Chatra, Dist.-Chatra, Jharkhand .... Petitioner Versus The State of Jharkhand …. Opp. Party P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners : Mr. Zaid Ahmed, Advocate For the State : Mr. Achinto Sen, Addl. P.P. ….. By the Court:- 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to set aside the order dated 07.02.2025 passed by the learned Additional Sessions Judge-I, Chatra in Sessions Trial Case No. 306 of 2023, corresponding to Sadar P.S. Case No.69 of 2023 whereby and where under, the learned Additional Sessions Judge-I, Chatra has allowed the petition filed by the prosecution to examine one witnesses. 3. The brief fact of the case is that the petitioner is an accused facing the said trial involving the offences punishable under Sections 302/34 of Indian Penal Code. When the trial was fixed for recording the evidence of prosecution, the Additional Public (2025:JHHC:16979) 2 Cr.M.P. No.1407 of 2025 Prosecutor filed a petition with the prayer that two witnesses namely Fulwa Devi and Prabhu Yadav, whose name finds place in the FIR itself but whose name was not incorporated in the column relating to list of witnesses to be examined during the trial in the charge sheet, to be examined as witnesses. Prabhu Yadav is a witness to the seizure list also and in front of him seizure was made. The same was opposed by the petitioner on the ground that two witnesses who are sought to be examined is to fill up the lacunae. The learned trial court considering the fact that Prabhu Yadav is a witness to the seizure list and a competent witness to the factum of seizure allowed examination of Prabhu Yadav as a prosecution witness. 4. It is submitted by the learned counsel for the petitioner that eight charge sheet witnesses have already been examined by the prosecution and at the fag end of the trial the petition under Section 311 of Cr.P.C. has been filed. Learned counsel for the petitioner relies upon the judgment of a coordinate Bench of this Court in the case of Ravi Bhusftan Dubey vs. State of Jharkhand reported in 2006 0 Supreme (Jhk) 33, wherein, in the facts of that case when the petition under Section 311 of Cr.P.C. was filed after the evidence of the prosecution was closed, in the facts of the case, it was observed by the coordinate Bench that allowing such petition at a belated stage will only result in grave miscarriage of justice to the affected parties and submits that the prayer as made in this criminal miscellaneous petition be allowed. (2025:JHHC:16979) 3 Cr.M.P. No.1407 of 2025 5. Learned Additional Public Prosecutor on the other hand vehemently opposes the prayer as made in this criminal miscellaneous petition and submits that under Section 311 Cr.P.C. if the evidence sought to be produced by way of producing any witness for the just decision of the case, then the trial court has no option but to call such witness whatever may be the stage of the case is. It is next submitted by the learned Additional Public Prosecutor that the undisputed fact remains that Prabhu Yadav- who is the witness; who has been permitted to be examined in exercise of the power under Section 311 of Cr.P.C; is named in the FIR and he is also the witness to the seizure, being signatory to the seizure list. It is further submitted by the learned Additional Public Prosecutor that the fact remains undisputed that the examination of Prabhu Yadav as a witness to the case, is required for just decision of the case. It is then submitted that the learned Additional Sessions Judge-I, Chatra has not committed any illegality by allowing the examination of Prabhu Yadav in exercise of the power under Section 311 of Cr.P.C. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to refer to Section 311 of Code of Criminal Procedure which reads as under:- “311. Power to summon material witness, or examine person present.—Any Court may, at any stage (2025:JHHC:16979) 4 Cr.M.P. No.1407 of 2025 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.” It is evident that Section 311 of Code of Criminal Procedure has two parts. The first part is discretionary whereas the second part is mandatory and because of the mandatory nature of second part, it compels the court to take any of the steps provided under Section 311 of Code of Criminal Procedure; if the new evidence appears to it essential to the just decision of the case, as has been held by the Hon’ble Supreme Court of India in the case of Zahira Habibulla Sheikh & Anr. Vs. State of Gujarat reported in (2006) 3 SCC 374. 7. Now coming to the facts of the case the undisputed fact remains that Prabhu Yadav is a witness who has been allowed to be examined by the trial court in exercise of the power under Section 311 of Code of Criminal Procedure. He is named in the FIR. The undisputed fact remains that he is a witness to the seizure and his name appears on the seizure list. There is no dispute that his evidence is required for the just decision of the case. 8. Under such circumstances, this Court do not find any illegality in the order dated 07.02.2025 passed by the learned Additional Sessions Judge-I, Chatra in Sessions Trial Case No. 306 of 2023 in allowing the petition of Section 311 of Code of Criminal Procedure (2025:JHHC:16979) 5 Cr.M.P. No.1407 of 2025 and the same do not warrant any interference of this Court in exercise of the power under Section 528 of B.N.S.S., 2023 9. Accordingly, this criminal miscellaneous petition being without any merit is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th June, 2025 AFR/Sonu-Gunjan/-