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2002 DIGILAW 380 (JHR)

Ashok Kumar Goddhyan v. State Of Jharkhand

2002-03-19

DEOKI NANDAN PRASAD

body2002
ORDER Deoki Nandan Prasad, J. 1. This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) has bren filed against the order dated 2.6.2001 passed by Shri A.K. Singh, Judicial Magistrate, 1st Class, Dhanbad. in C.P. Case No. 355 of 1989, whereby and whereunder, the learned Magistrate rejected the petition under Section 311 of the Code for further examination and cross-examination of the complainant/petitioner by the opposite party No. 2. 2. The prosecution case in short, as stated is that the petitioner was the subscriber of Telephone No. 201 and his father was the subscriber of Telephone No. 285. The bills of both the telephones were being paid regularly but the Telephone Department submitted excessive bills against Telephone Nos. 201 and 285 in the year 1988 by tempering the meter and as the payment could not be made, both the telephones were disconnected. Even after disconnection of the telephones, bills for use of the telephones were forwarded to the petitioner and his father. Accordingly, the complaint case was filed. 3. The inquiry under Section 202 of the Code was held and cognizance was taken under Section 427 of the Indian Penal Code. Witnesses were examined on behalf of the complainant/prosecution but the complainant/petitioner, was partly examined on 9.12.1997. The prosecution wanted to exhibits the carbon copy of some documents in course of examination but a petition was tiled on behalf of the accused/opposite party No. 2 objecting marking of documents and adjournment was sought on his behalf and, as such, the examination of the complainant/ petitioner could not be concluded. Again a petition under Section 311 of the Code was filed on behalf of the complainant/petitioner for examination of the complainant and for recalling the order dated 20.2.2001 which was rejected by the order impugned, hence this application. 4. The learned counsel appearing on behalf of the petitioner confined his argument as regards to the rejection of the petition under Section 311 of the Code and submitted that though the petitioner/complainant was examined but his examination could not be concluded only because of the fact that objection was raised on behalf of opposite party No. 2/accused person about marking of the documents as Exhibits and, therefore, there was no laches on the part of the petitioner/ complainant for his examination. It is further submitted that opposite party No. 2 had earlier filed a petition before this Court being Cr. Misc. No. 4964 of 1996(R) for quashing of issue of processes against the accused persons and the said petition was disposed of with an observation that the counsel for the opposite party, who is complainant in the Court below, also submitted that he undertakes that the complainants case will be concluded within two months and if the complainant will not cooperate then the trial Court is competent to close the prosecution case. It is also submitted that opposite party No. 2/accused had filed his objection against the marking of carbon copy of some documents as Exhibits and, due to which, the complainant could not be examined. There was no Presiding Officer from 12.1.1998 to 18.12.1998 and thereafter the said case was transferred on 24.11.1998 and the next date was fixed on 17.1.1999. The petitioner/ complainant was present in Court on 4.2.1999 and 15.3.1999 but his examination and cross-examination was not done. On 12.7.1999 the petitioner filed a petition before the Court below that B and C Files are not available with the main record and thereafter the Court below passed an order on 12.7.1999 itself that all the Exhibited documents are not attached with the case record and, therefore, write letter to the Court of Sri Om Prakash, Judicial Magistrate, 1st Class, Dhanbad, requesting him to direct the Office Clerk (O/C) to send the Exhibits to this Court. The petitioner again appeared before the Court on 28.9.1999 but his examination could not be done. Again the petitioner appeared on 6.12.1999 but his examination could not be done. On 3.1.2001 a submission was made on behalf of opposite party No. 2 that he did not like to file any objection to the marking of carbon copy of the documents as Exhibits. However, the Court closed the case on 20.2.2O01 for non- examination of the petitioner/ complainant but the evidence of the complainant/petitioner is essential to arrive at the correct conclusion of the case and there was no laches on the part of the complainant/petitioner in delay of the disposal of the case. Counsel for the petitioner also relied upon a case of the Supreme Court in Shailendra Kumar v. State of Bihar and Ors., 2002 AIR Jhar HCR 42 : 2002 (1) East Cr C 81 (SC). 5. Counsel for the petitioner also relied upon a case of the Supreme Court in Shailendra Kumar v. State of Bihar and Ors., 2002 AIR Jhar HCR 42 : 2002 (1) East Cr C 81 (SC). 5. On the other hand, learned Counsel appearing on behalf of opposite party No. 2 contended before me that sufficient opportunity was given to the petitioner/complainant for his examination but deliberately he could not be examined in order to delay in disposal of the case inspite of the fact that there was a direction of this Court to dispose of the case within two months. The Court below apart from the order passed on 1.9.2000 again on 3.1.2001 the prosecution was given last chance to adduce evidence so that the trial could be concluded within the stipulated period, but the petitioner/ complainant could not be examined. It is also submitted that the instant case stands fully covered by the decision of the Apex Court in Rajdeo Sharmas case and the learned Court below has rightly rejected the petitioner/complainants petition. 6. Before appreciating the contention of the learned counsel appearing from both sides, it is pertinent to reproduce Section 311 of the Code which reads as under : "Any Court may, at any stage 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." 7. Thus it is obvious that part examination of the petitioner/complainant was already done in this case and in course of his examination, opposite party No. 2/accused admittedly had objected in marking the carbon copy of the documents, as a result whereof the case was adjourned and the examination or cross- examination of the petitioner could not be concluded. There is no doubt that the Court below can summon the witness who has been partly examined for his re- examination if his evidence appears to be essential to the just decision of the case. It is evident from the record that due to transfer of the Presiding Officer also, there was delay in disposal of the case. There is no doubt that the Court below can summon the witness who has been partly examined for his re- examination if his evidence appears to be essential to the just decision of the case. It is evident from the record that due to transfer of the Presiding Officer also, there was delay in disposal of the case. The examination of the petitioner/ complainant appears to be essential in the instant case for just decision of the case. Moreover, the defence/opposite party No. 2 would also get ample opportunity to cross-examine the petitioner/complainant at length. It is true that this is a case of 1989 and much delay has already been made. 8. In the above facts and circumstances, this application is allowed and the impugned order dated 2.6.2001 is set aside. The trial Court is directed to examine the petitioner/ complainant and the defence/opposite party No. 2 will also get an opportunity to cross-examine him. It is made clear that the petitioner shall be present in the Court below on the next date for his examination and cross-examination. However, if the trial Court finds any laches or deliberate delaying tactics on the part of the petitioner for his examination or cross-examination, the trial Court will close the case without examining /cross-examining him and dispose of the case without further delay.