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2001 DIGILAW 887 (PAT)

Debashish Bose v. State Of Bihar

2001-09-19

S.K.CHATTOPADHYAYA

body2001
Judgment 1. Heard Mr. Anjan Chakrabarty. learned counsel for the petitioner. Mr. S.K. Mishra. learned counsel for opposite parties 2 to 4 and learned APP for the State. 2. The order dated 4.10.1999 has been impugned by the petitioner in this application under Section 482 of the Code of Criminal Procedure by reason of which the learned Magistrate has dismissed the petition filed under Section 311 of the Code. 3. On the basis of a fardbeyan of Samir Kumar Ghosh a case was registered and the Police after investigation filed charge-sheet on which cognizance was taken. It was alleged in the First Information Report that on 18.9.1994 at 6.30 p.m. while the petitioner was going on motor cycle to attend the meeting of Bengali Association, he was assaulted by opposite parties 2 and 3 by means of rods infront of the house of one Munni Mistri, as a result the petitioner sustained grievous injury compelling him to be hospitalised for a considerable period. During trial four persons were examined by the prosecution till 18.6.1999 but the petitioner who was the injured and real victim was not examined. On 9.7.1999, when the learned Magistrate closed the evidence, the petitioner immediately filed a petition on the same day under Section 311 of the Code praying therein to record his statement as he was present in Court itself. The copy of the petition is Annexure-2. The learned Magistrate gave an opportunity to the accused to file a rejoinder on the next day and thereafter on 4.8.1999 rejected the petition under Section 311 of the Code. 4. Being aggrieved the petitioner moved the Sessions Judge in Criminal Revision No. 131 of 1999 but without success. 5. Mr. Chakrabarty. learned counsel for the petitioner, has contended that the learned Magistrate as well as the learned Sessions Judge erred in law in rejecting the prayer of the petitioner for his examination on misinterpretation of the decision rendered by the Supreme Court in the case of Raj Deo Sharma V/s. State of Bihar, 1998 (3) PLJR 57 : 1998 (2) East Cr C 1092 (SC). According to him, the modified order of the Supreme Court in the same very case 1999 (7) SCC 604 has not been looked into by both the Courts below and, as such, the orders are vitiated. According to him, the modified order of the Supreme Court in the same very case 1999 (7) SCC 604 has not been looked into by both the Courts below and, as such, the orders are vitiated. His further contention is that under Section 311 of he Code, the Court is required to summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. According to him. when the petitioner being the injured person was present in Court for being examined, the learned Magistrate ought to have allowed his prayer for the ends of justice. 6. Mr. Mishra countering this argument has contended that the present application under Section 482 of the Code is not maintainable as it is in the garb of Second Revision. In support of his contention he has relied on the decision in the case of Surendra Singh and Ors. V/s. State of Bihar and Ors., 1990 (2) PLJR 693 . Secondly, he has contended that the petitioner having not challenged the order dated 9.7.1999 closing the evidence by the learned Magistrate, he cannot be allowed to impugn the order dated 4.10.1999 because setting aside the impugned order would amount to review the order dated 9.7.1999. Lastly, he contends that when even during two years the prosecution could not produce any further evidence and the petitioner being a practising lawyer was present in Court did not examine himself, the learned Magistrate cannot be blamed for rejecting his prayer under Section 311 of the Code. 7. It is true that in the case of Surendra Singh. (supra) a Special Bench of this Court has held that when the Revision petition under Section 397(1) of the Code filed before the Sessions Judge was dismissed. the petition under Section 482 of the Code is not maintainable. but subsequently in several decisions. the Apex Court has dealt with this question and has observed that the High Courts power under Sections 482 and 397 of the Code is separate from each other. the petition under Section 482 of the Code is not maintainable. but subsequently in several decisions. the Apex Court has dealt with this question and has observed that the High Courts power under Sections 482 and 397 of the Code is separate from each other. Their Lordships are of the view that though it is true that Second Revision petition does not lie before the High Court, when one is dismissed by the Court of Session, still the Court of Session is a court subordinate to the High Court and, as such, its proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure. This view has been taken in the case of Jitendra Kumar Jain V/s. State of Delhi and Ors., 1998 (8) SCC 770 . The same view has been expressed by this Court in the case of Kush Kumar @ Kushal V/s. State of Bihar and Ors., 2000 (3) PLJR 1999 : 2001 (1) East Cr C 45 (Pat), in which reliance has been placed in the case of Krishnan and Anr. V/s. Krishnaveni and Anr., 1997 (1) East Cr C 643 (SC) : 1997 (4) SCC 241 . Moreover, this Court has held in the case of Md. Nassim V/s. State of Bihar and Ors., 2000 (4) PLJR 1 : 2000 (2) East Cr C 1171 (Pat). that the High Court under Section 482 of the Code can interfere in the revisional order passed by the Court below if it leads to miscarriage of justice. In view of this I find no substance in the first contention of Mr. Mishra. 8. The second point urged on behalf of the opposite parties is also not sustainable inasmuch as though on 9.7.1999 the learned Magistrate closed the prosecution case but on the same very day the petitioner filed a petition under Section 311 of the Code on which the accused persons were given chance to file a rejoinder. The learned Magistrate passed the impugned order dated 4.3.1999 rejecting the prayer of the petitioner which would amount to confirming his earlier order dated 9.7.1999. In such circumstance, in my view, when the petitioner had already filed his petition on 9.7.1999, he had no occasion to move the higher Court impugning the said order because his petition was yet to be disposed of by the learned Magistrate. In such circumstance, in my view, when the petitioner had already filed his petition on 9.7.1999, he had no occasion to move the higher Court impugning the said order because his petition was yet to be disposed of by the learned Magistrate. In the case of Raj Deo Sharma, (supra) while considering the right to speedy trial their Lordships were of the view that the learned Magistrate has the power to close the prosecution if the prosecution is unable to produce its witnesses inspite of repeated opportunities. In this case it was held that in cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not the Court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the Court can proceed to the next step provided by law for the trial of the case. However, in its modified order, in the case of Raj Deo Sharma (II). (supra), the Supreme Court had held that in Raj Deo Sharma (I). case the Court had not fixed an outer time-limit for conclusion of all criminal proceedings in a case. The whole idea was to speed up the trial in criminal cases to prevent the prosecution from becoming a persecution of the person arrayed in a criminal trial. No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison deetre in prescribing the time frame within which prosecution evidence must be closed. Ultimately their Lordships have held as follows : "In the context of the plea regarding prospective operation of Raj Deo Sharma (1) decision, a rider has to be included that an additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in the main appeal and the Court concerned would be free to grant such extension if the Court considers it necessary in the interest of administration of criminal justice. As the operation of that judgment has been suspended from 14.5.1999 till the date of the present judgment i.e. 22.9.1999. As the operation of that judgment has been suspended from 14.5.1999 till the date of the present judgment i.e. 22.9.1999. the said time of suspension will stand excluded from the aforementioned additional period of one year." 9. In the background of this authoritative pronouncement, if the facts and circumstances of the present case are scrutinised, it would reveal that on the date when the learned Magistrate closed the prosecution case. the petitioner filed his petition under Section 311 of the Code on the same day praying therein to record his evidence. Thus, only because on 4.8.1999 the learned Magistrate closed the case, he ought not to have rejected the prayer of the petitioner under Section 311 of the Code. 10. It appears that the modified order of the Supreme Court was not brought to the notice of the learned Magistrate otherwise he would have allowed the petitioner to give his evidence in Court. In the second case of Raj Deo Sharma (II), (supra) in paragraph 9 the Supreme Court has observed. in this regard, as follows : "We may observe that the power of the Court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five- Judge Bench in A.R. Antulay, case nor in Kartar Singh, case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the Court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case it is the duty of the Court to summon and examine or recall and re-examine any such person." Their Lordships were of the firmed view that even if the prosecution evidence is closed in compliance of the direction of the main judgment it is still open to the prosecution to invoke the power of the Court under Section 311 of the Code. In the instant case the petitioner was an injured witness and his evidence, obviously was necessary for arriving at a just decision of the case and, as such, the learned Magistrate, in my view, Was not justified in rejecting his prayer outright merely on the ground that prosecution witness was closed on 9.7.1999 in view of the decision of the first case of Raj Deo Sharma. It appears that same mistake has been committed by the Revisional Court which also did not care to see the modified order of the Supreme Court in Raj Deo Sharmas case (II). 11. Mr. Mishra has tried to convince the Court that in order to fill up the lacuna the petitioner filed the petition under Section 311 of the Code. In my view, Mr. Mishra is not justified in his submission. The learned Magistrate should have appreciated that after receiving injury the petitioner was hospitalised for a considerable period and, as such, it was not possible for him to get himself examined immediately. Recently in the case of Rajendra Prasad V/s. Narcotic Cell through its Officer-in-charge, Delhi, 1999 (2) East Cr C 217 (SC) : 1999 (105) Cr LJ 3529 (SC). the Supreme Court in paragraphs 6 & 7 has observed as follows : "It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence act by saying that the Court could not fill the lacuna in the prosecution case. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing human is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case. but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. The advantage of it should normally go to the accused in the trial of the case. but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 12. Their Lordships, in my view, have emphasised on the function of the criminal court in administering criminal justice when it says that its function is not to count errors committed by the parties or to find out and declare who among the parties performed better. 13. In the facts and circumstances of the case, I am of the view that both the orders of the learned Magistrate dated 4.8.1999 and that of the revisional Court dated 4.10.1999 are not sustainable in law and must be set aside. In the result, this application is allowed. The impugned order dated 4.8.1999 and the order dated 4.10.1999 are set aside. The learned Magistrate is directed to record the evidence of the petitioner after giving opportunity to the opposite parties accused and to proceed with the trial thereafter. 14. As the trial is pending since 1994. I direct the learned Magistrate to conclude the same as expeditiously as possible and preferably within two months from the date/production of a copy of this order. 15. The office is directed to send a copy of this order to the learned Magistrate forthwith.