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2001 DIGILAW 17 (PAT)

Shashi Bhushan Srivastava v. State Of Bihar

2001-01-08

P.K.DEB

body2001
Judgment P.K.Deb, J. 1. This petition has been filed by the above named accused-petitioners under Section 482 of the Code of Criminal Procedure for quashing the order dated 24.4.1999 passed by Judicial Magistrate, 1st Class, Siwan, in Trial No. 747 of 1999 arising out of the complaint case No. 1053 of 1992 whereunder some persons who were not cited as witnesses in the complaint- petition have been ordered to be examined in support of the complainant on a petition being filed by an unauthorised person. 2. The complaint was filed by Mostt. Lal Chuni Kunwar with regard to the transactions of her land. On prior occasion it is the contention of the petitioner that she had filed a civil suit for specific performance of contract and afterwards she had filed the present complaint under Sections 420/419/467/468/ 471/120-B of the Indian Penal Code. Cognizance was taken on the complaint- petition after examining of the complainant and her witnesses and then the trial started. Some of the witnesses including the complainant had already been examined in the case and it is stated that the complainant died in the meantime and before her death a compromise petition was filed but no order was passed on it by the Court below. But then the person who was not legal representative of the complainant had filed a petition for examination of some of the witnesses who were cited as witnesses in the complaint-petition and such petition was entertained and order was passed for examination of those witnesses as remaining witnesses by the Court below by the impugned order. Hence, this petition. 3. Hands of courts can never be tied only examining the cited witnesses in the complaint but for ends of justice the Court can ask any persons to be witness for arriving at a just decision in the dispute, and this has got sanction under Section 311 of the Code of Criminal Procedure. It is the contention of petitioners that such order was passed on the initiation of a petition filed by an unautho- rised person as that person was never substituted for and on behalf of the complainant after her death. It is the contention of petitioners that such order was passed on the initiation of a petition filed by an unautho- rised person as that person was never substituted for and on behalf of the complainant after her death. Without going through that aspect of the matter the order asking some more witnesses to be examined for coming to a just decision cannot be said to be illegal or without jurisdiction as Section 311 of the Indian Penal Code (sic-Code of Criminal Procedure ?) has given power and jurisdiction to the Court to examine any person as witness for coming to a just decision of the case. In that way, it cannot be said that the impugned order is bad. However, learned Court below ought not have acted on the petition filed by an unauthorised person but the impugned order justifies about the examination of the witnesses outside the scope of the complaint-petition itself wherein there are more cited witnesses. Learned counsel for the petitioners has referred to a decision of the Kerala High Court as reported in 1984 Cr LJ 1897, Chillikkoodathi Manual Augustin V/s. State of Kerala wherein it was held that the Court has got power under Section 311 of the Indian Penal Code (sic-Code of Criminal Procedure?) to examine any person to lead evidence in support of the prosecution but it is restricted to the extent that it must be for the purpose of coming to a just decision in the case. In the earlier part of the reported case it. was held that when the complainant is absent and several dates were granted on earlier occasions and there was no representation of the complainant that the acquittal of the case under Section 256(1) of the Criminal Procedure is right and proper. This judgment of the Kerala High Court does not help the petitioners in its submission for quashing the proceeding. was held that when the complainant is absent and several dates were granted on earlier occasions and there was no representation of the complainant that the acquittal of the case under Section 256(1) of the Criminal Procedure is right and proper. This judgment of the Kerala High Court does not help the petitioners in its submission for quashing the proceeding. On the other hand, there is a judgment of the Rajasthan High Court as reported in 1964 (2) Cr LJ 583, Baksa V/s. Ishwar Singh wherein it was held that a person who had not been cited as a witness but his examination was necessary for coming to a just decision in the case, can be a witness to lead evidence as contemplated under Section 311 of the Indian Penal Code (sic-Code of Criminal Procedure?) and his position comes as a remaining witness as contemplated under Section 252(2) of the Code of Criminal Procedure of the old Act. Thus the impugned order cannot be said to be without jurisdiction but the learned Court below ought not to have passed such order on its initiation being made by unauthorised persons. But the order justifies examination of witnesses for coming to a just decision of the case. Now the point remains that the complainant has died and before her death there is allegation that already a compromise petition had been filed. If that he so, before proceeding further in the case the learned Court below should decide that factor first. 4. With this observation this petition is disposed of.