The High Court has the power to interfere in revision in cases where the interest of public justice requires interference for the correction of a manifest illegality or prevention of gross miscarriage of justice. This power includes the authority to order a retrial if the trial court has failed to exercise its power under Section 311 of the CrPC to summon material witnesses for examination.

( 1 ) THE hapless widow has come to the door of this Court seeking justice and fair trial of the case of murder of her husband. She being in torment has preferred the instant revision application under Section 401 read with Section 482 of the Code of Criminal Procedure against the judgment and order of acquittal passed by the learned Additional Sessions Judge, First Court, Asansol on 30th January, 2002 in Sessions Case No. 130 of 2001 corresponding to s. T. No. 02 of 2002 under Section 302 of the Indian Penal Code.

( 2 ) SHORN of details the prosecution case is that on 19th March, 1997 at about 23-00 hours Mongol Singh, Assistant Jamadar, R. S. Singh, Assistant guard and Ranjit Singh, Assistant Guard all attached to DVC, Maithan left the security control room of DVC, Maithan for nigh patrolling duty around Maithan by the jeep. They stopped near Majumdar Niwas at about 2-00 A. M. on 20th march, 1997 for filling the jeep radiator with water. At that time there was hot altercation between Ranjit Singh (accused) and Mongol Singh and the accused ranjit Singh shot at Mongol Singh from his gun as a result of which Mongol singh received sever injuries and he was taken to B. P. Neogi Hospital, Maithan for treatment where he ultimately succumbed to his injuries. On 20th March, 1997 at about 10-35 hours O. Hembram, Security Officer, D. V. C. Maithan lodged the written compliant with the police officer on duty, Salanpur Police station and on the basis of the said written compliant which was treated as f. I. R. Salanpur P. S. Case No. 25 of 1997 dated 20th March, 1997 under section 302, I. P. C. and Section 30 of the Arms Act was started against the accused Ranjit Singh. On completion of investigation the police submitted charge-sheet under Section 302, I. P. C. against the accused.

( 3 ) THE learned S. D. J. M. , Asansol committed the case to the Court of Session under Section 209 of the Code of Criminal Procedure and the trial was conducted in the Court of the learned Additional Sessions Judge, First court, Asansol who framed the charge under Section 302, I. P. C. against the accused. The accused raised plea of innocence in his defence. It is manifestly clear from the materials on record that in the course of trial the defacto complainant O. Hembram had not been examined on behalf of the prosecution and the written complaint which was treated as F. I. R. had not been admitted in evidence because of non-production of the defacto complainant, O. Hembram, as witness. That apart, the impugned judgment per se reveals that neither the doctors nor some important witnesses who are alleged to have witnessed the occurrence were examined on behalf of the prosecution for proving the prosecution case. The reasons for withholding those witnesses were not at all cited by the prosecution. The learned trial Court found the evidence adduced on behalf of the prosecution to be far from convincing which inevitably led to acquittal of the accused.

( 4 ) MR. Asim Kumar Roy, the learned Advocate for the petitioner has contended that when the prosecution failed to produce the material witnesses including the defacto complainant during trial the learned trial Court ought to have exercised its power under Section 311 of the Code of Criminal Procedure to summon those material witnesses for examining them since their evidence is essential to the just decision of the case. He has drawn my attention to the mandatory portion of Section 311 of the Code of Criminal Procedure which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the case. Section 311 of the Code of Criminal Procedure in fact consists of the two parts i. e. , one part empowers the Court to exercise discretion to examine witness at any stage and the other part which is mandatory in nature compels the Court to examine any such person whose evidence appears to be essential to the just decision of the case. Mr. Roy, on behalf of the peti