Patna High Court – Orders
Ramashray Prasad vs The State Of Bihar Through Vigilance on 23 July, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.2831 of 2022
Arising Out of PS. Case No.-5 Year-2009 Thana- VIGILANCE District- Patna
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RAMASHRAY PRASAD S/O LATE BHATTU SAO R/o village- Dhibrapar,
P.S.- Hilsa, District- Nalanda, at present Mohalla- Subhas Nagar, Lane No. 2,
P.S.- Ram Krishna Nagar, District- Patna
... ... Petitioner/s
Versus
The State of Bihar through vigilance Bihar
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Dr. Bipin Chandra, Advocate
For the Opposite Party/s : Mr.Narendra Kumar Singh, APP
For Vigilance : Mr. Arvind Kumar (Spl. P.P.)
======================================================
CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL ORDER
15 23-07-2026
Heard the parties.
2. The prayer is to quash the order dated 29.11.2021
passed by the learned Special Judge (Vigilance) D/A Cases,
Bhagalpur, in Special Case No. 2 of 2009 arising out of
Vigilance P.S. Case No. 5 of 2009, by which three petitions filed
on behalf of the petitioner, dated 25.02.2021, 09.09.2021 and
17.11.2021, have been rejected and the defence evidence has
been closed.
3. The relief sought below was of two kinds. First,
that three agricultural income certificates said to have been
issued from the office of the Circle Officer, Hilsa, District
Nalanda, be marked as defence exhibits without formal proof,
they being public documents. Second, that the Circle Officer be
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summoned as a defence witness under Section 311 of the Code
of Criminal Procedure at the cost of the petitioner. The
certificates are dated 24.02.2009, 18.07.2013 and 20.07.2015.
4. The prosecution case, shortly stated, is that on
26.11.2008 the petitioner, then Inspector, Legal Metrology,
Banka, was caught accepting a bribe of Rs. 990. On search of
his houses at Banka and at Khemnichak, Patna, property said to
be worth Rs. 46,95,225 was found. Reckoning his salary from
his appointment as Laboratory Assistant on 14.12.1970 up to
November 2008 at a flat figure of Rs. 61,20,000, and allowing
one third of it as savings in accordance with the practice of the
Bureau, the savings ought to have been Rs. 20.33 lakhs. The
excess of Rs. 26,62,225 is alleged to be disproportionate to his
known sources of income. Vigilance P.S. Case No. 5 of 2009
was registered on 22.01.2009 under Section 13(2) read with
Section 13(1)(e) of the Prevention of Corruption Act, 1988.
Charge sheet followed on 19.03.2009 and charge was framed on
23.12.2010.
5. Learned counsel for the petitioner submitted that
the certificates bear the signature and the seal of the Circle
Officer on the printed form of the State Government, that they
are therefore public documents and require no formal proof, and
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that if the learned trial court entertained any doubt about their
genuineness the proper course was to summon the Circle Officer
and not to shut out the material altogether. He submitted that the
case against the petitioner is one of disproportionate assets, that
the whole controversy is whether his known sources account for
what was found, and that agricultural income is the very heart of
his defence. Section 311, he submitted, is expressed in the
widest terms and operates at any stage. The order below is said
to have been passed in a routine manner. Reliance was placed on
the order dated 09.04.2014 passed by a coordinate Bench of this
Court in Cr. Misc. No. 1817 of 2014 (Tarak Nath Manna v. State
of Bihar through C.B.I.), and, before the court below, on a
decision reported in AIR 1994 Gauhati 67.
6. Learned Special Public Prosecutor opposed. He
submitted that the certificates dated 18.07.2013 and 20.07.2015
are computer generated printouts unaccompanied by any
certificate under Section 65B(4) of the Evidence Act, and that
the certificate dated 24.02.2009 is an attested photocopy bearing
an initial and a faded seal, which is not a certified copy within
the meaning of Section 76, the original having never been
produced and its whereabouts nowhere disclosed. He drew
attention to the conduct of the defence. Thirteen witnesses were
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examined for the prosecution and cross examined at length, and
not one of them was asked a single question about these
certificates. Ten witnesses were examined for the defence, of
whom two were substituted in place of others by a petition dated
09.02.2021 to which the prosecution had no objection, and none
of them said a word about the certificates. The Circle Officer
was never named. The petitions came only after the defence
case was spent, are unsupported by affidavit, and are
inconsistent with each other.
7. This Court has considered the submissions and
perused the impugned order and the annexures.
8. Take the two later certificates first. Those of
18.07.2013 and 20.07.2015 are printouts. Since Anvar P.V. v.
P.K. Basheer, (2014) 10 SCC 473, and Arjun Panditrao Khotkar
v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the certificate
under Section 65B(4) is a condition precedent to the
admissibility of an electronic record led as secondary evidence.
None accompanies these. That would be enough, but there is a
shorter answer. The check period alleged in the first information
report runs from December 1970 to November 2008. A
certificate issued in 2013 speaking of income in 2013, and a
certificate issued in 2015 speaking of income in 2015, tell the
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court nothing about the period in issue. The learned trial court
said so, and said it correctly. The question of admissibility does
not arise, because the question of relevance is answered against
the petitioner first.
9. The certificate dated 24.02.2009 stands differently
and requires a little more care. It is not an electronic record. It is
an attested photocopy. Section 76 of the Evidence Act requires,
before a copy can be called a certified copy, payment of the
legal fee, a certificate written at the foot of the copy that it is a
true copy, dated and subscribed by the officer with his name and
official title, and sealed. The learned trial court examined the
document and found none of this. The original has not been
produced. Nowhere in the three petitions, nor in the application
before this Court, is there any explanation of where the original
is. The petitioner has had the document since 2009. He has been
on trial since 2010. The decision reported in AIR 1994 Gauhati
67 does not assist him, for reasons the learned trial court has
given, which need not be repeated here.
10. That brings the matter to Section 311. The section
is in two parts. The first is permissive and confers a discretion.
The second is mandatory and obliges the court to summon and
examine, or to recall and re-examine, if the evidence appears to
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it to be essential to the just decision of the case. The width of the
power is not in doubt. Nor is the discipline of its exercise. In
Vijay Kumar v. State of U.P., (2011) 8 SCC 136, it was said that
though the section is expressed in the widest possible terms, the
discretion is to be exercised judicially and for reasons stated,
and not arbitrarily or capriciously. In Natasha Singh v. CBI,
(2013) 5 SCC 741, the determinative factor was held to be
whether the summoning is in fact essential to the just decision
of the case, and it was said in the same breath that the power
must not be used to fill a lacuna in the case of the prosecution or
of the defence. In Rajaram Prasad Yadav v. State of Bihar,
(2013) 14 SCC 461, the principles were catalogued. In Swapan
Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14
SCC 328, it was held that the power is to be exercised only for
strong and valid reasons and with great caution, and that it is not
to be exercised where the court is of the view that the
application is an abuse of the process of law.
11. Delay by itself would not have persuaded this
Court to refuse. Section 311 says at any stage, and it means at
any stage. If the only vice in these petitions were that they came
late, this Court would have been slow to shut the petitioner out,
because a man defending himself against a charge of
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disproportionate assets who says he had land and grew crops on
it is not raising a fanciful plea. He must satisfactorily account
for the excess: State of M.P. v. Awadh Kishore Gupta, (2004) 1
SCC 691. Refusing him the means of accounting is a serious
thing. Rajaram Prasad Yadav says, at clause (k) of the catalogue,
that it is safer to err in favour of the accused getting an
opportunity.
12. But that is not the only vice, and the petitioner
does not fail on delay. He fails because there is nothing for the
Circle Officer to prove. Two of the three certificates relate to a
period outside the charge. The third exists on the record as a
photocopy whose original is unaccounted for, and the petitioner
has offered no explanation at all, not to the court below and not
to this Court. A summons issued to the Circle Officer in these
circumstances would not advance the just decision of the case. It
would only lengthen it.
13. Then there is the conduct. Thirteen prosecution
witnesses came and went without a question about the
certificates, though the certificate of 2009 was in the petitioner’s
hands before any of them was examined. A list of ten defence
witnesses was filed on 08.07.2019. Eight were examined. When
the petitioner wished to change two of the remaining names he
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applied on 09.02.2021 and the prosecution did not object, and
the substituted witnesses, Ranjeet Kumar and Surendra Prasad,
were examined. At no point in that exercise did it occur to
anyone to name the Circle Officer. It occurred to the petitioner
only when the defence evidence was exhausted. This Court is
unable to treat that as inadvertence.
14. Learned counsel placed strong reliance on Tarak
Nath Manna. This Court has read that order. It does not carry
him. There, an accused prosecuted since 1990 sought to exhibit
a certificate of a college Principal and to summon the Principal,
long after the defence evidence had been closed in 2003, and the
learned Magistrate rejected the prayer on the ground of delay
alone. The coordinate Bench found that the Magistrate had
made no endeavour whatever to examine the relevancy of the
certificate or of the proposed witness, and remitted the matter
for fresh consideration within one month. The vice there was the
absence of any application of mind to relevancy. That is
precisely what is not wanting here. The order of 29.11.2021 runs
to six pages and does nothing but examine relevancy and
admissibility. Tarak Nath Manna does not hold that such a
prayer must be allowed. It holds that it must be considered. It
was considered. Further, the order was passed on 09.04.2014,
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some five months before Anvar P.V. was decided, and it
concerned a certificate of a Principal and not a computer
generated printout, so no question under Section 65B arose or
could have arisen. The relief it gave was a remand, not a
direction to exhibit.
15. One thing should be said plainly, so that it is not
lost. Nothing in the impugned order, and nothing in this order,
amounts to a finding that the petitioner had no agricultural
income. The learned trial court has held that these three pieces
of paper are not proved and that two of them are beside the
point. That is a finding about the documents. It is not a finding
about the man’s fields. The petitioner remains at liberty to say
what he wishes about his agricultural income when he is
examined under Section 313 of the Code, and to address the
learned trial court in argument on whatever is already on the
record bearing on his known sources, and the learned trial court
shall consider such explanation on its merits and shall not treat
the order dated 29.11.2021, or this order, as foreclosing that
question. Whatever weight the material already on the record
deserves is for the learned trial court at the stage of appreciation
of evidence, and this Court says nothing about it.
16. Subject to what is said in the preceding paragraph,
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this Court finds no ground to interfere. The order dated
29.11.2021 is neither illegal nor perverse. It is a considered
order refusing a belated and unexplained prayer, and an order of
that kind, made in the course of a trial, is not to be disturbed in
the exercise of the inherent jurisdiction. It may be added that an
order summoning or refusing to summon a witness is of the
class which Amar Nath v. State of Haryana, (1977) 4 SCC 137,
describes as purely interlocutory, and Section 482 is not to be
used to defeat the bar in Section 397(2): Madhu Limaye v. State
of Maharashtra, (1977) 4 SCC 551. This Court rests the matter,
however, on the merits.
17. The trap is of November 2008. The case was
registered in January 2009. Charge was framed in December
2010. Arguments were listed on 10.12.2021 and have not been
heard because of this application. The petitioner is 72 years old.
Nobody is served by this trial continuing into a seventeenth
year. The learned trial court shall hear arguments and pronounce
judgment within three months from the date of receipt of a copy
of this order, and shall not grant adjournments to either side
except for reasons recorded in writing.
18. The application stands dismissed with the
observations and the direction made above.
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19. Let a copy of this order be communicated to the
learned Special Judge (Vigilance) D/A Cases, Bhagalpur,
forthwith.
(Ansul, J)
amitkr/-
U T
