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2005 DIGILAW 38 (PAT)

Vijay Kumar v. State Of Bihar

2005-01-13

P.K.SINHA

body2005
Judgment 1. This is an application under section 482 of the Code of Criminal Procedure (The Code in short) praying therein to quash order dated 8.8.2002 recorded by the learned Additional Sessions Judge, 12th at Patna in Cr. Rev. no. 197 of 2002 preferred against order dated 21.2.2002 recorded by Sri S.K. Chaudhary, the then Judicial Magistrate, first class at Danapur in Complaint Case no.203(C) of 1999 whereby and whereunder the application filed by the petitioner, the complainant in the case, under section 311 of the Code of Criminal Procedure, 1973 was rejected. The revision against that order was also dismissed. 2. Learned counsel for the petitioner has submitted that two witnesses were examined in the case and the rest of the witnesses of the complainant had gone over to the side of the accused and, thereafter a petition was filed by the petitioner on 17.5.2000 to be allowed to examine five more witnesses named therein but, as argued by the learned counsel for the petitioner the petition aforesaid remained pending though charges were framed. Thereafter, the same prayer was repeated by another petition dated 8,1.2002 (Annexure-4). 3. The learned trial court on hearing the parties rejected the prayer on various points such as taking into consideration the fact that these fresh witnesses were not mentioned in the petition for complaint nor were mentioned in an earlier petition filed for the same purpose dated 8.6.1999 and the court was of the opinion that by allowing such petitions the trial in a case would go on endlessly. As already stated that other was tested in criminal revision which also was dismissed by a speaking order. 4. Obviously, the other witnesses named in the complaint did not come forward to support the case of the complainant whereafter, as mentioned in the order of the learned Magistrate, earlier a petition was filed on 8.6.1999 for examining witnesses, learned counsel for opposite parties no. 3 to 5 submitting that in that also names of two other witnesses were given who also did not turn up to support the case of the complainant. Learned counsel for the petitioner submits that the two witnesses named in petition dated 8.6.1999 had turned up in course of enquiry under section 202 of the Code but in cource of trial they did not turn up. 5. Learned counsel for the petitioner submits that the two witnesses named in petition dated 8.6.1999 had turned up in course of enquiry under section 202 of the Code but in cource of trial they did not turn up. 5. Obviously, this petitioner has taken up his petition to have been filed under section 311 of the Code as would appear from the very first paragraph of the instant petition. This provision under the Code empowers a court to summon any person as a witness or to examine any person in attendance or to recall and examine any person already examinied if his evidence appears to the court to be essential for a just decision of the case. This power has been granted to the court in the interest of justice and for a just decision in the case but not for filling up some lacunae in the case of a party. If some witnesses have refused to support the case of prosecution it does not necessarily invite an inference that they actually had seen the occurrence or they knew about the occurrence but purposely they have refused to go to the witness stand for supporting the case of the prosecution. Therefore, in all circumstances the court may not in its discretion allow prayer made by the prosecution for examining any number of witnesses. 6. It appears to me that the learned Magistrate and the learned revisional court have given good reasons for coming to the conclusion they arrived at. In that view of the matter, I find no scope for interfering with the impugned order as aforesaid. 7. There is another aspect of it. The order of the learned Magistrate was tested in revision. Out of the two forums available to revise an order passed by a subordinate court it is for the aggrieved person to select a forum but once he selects a forum he is prohibited from taking up the same matter before the other forum. If a matter has been decided in revision then taking up the same matter and the same grievance in the garb of exercise inherent powers under section 482 of the Code would only amount to do a thing otherwise prohibited under law. If a matter has been decided in revision then taking up the same matter and the same grievance in the garb of exercise inherent powers under section 482 of the Code would only amount to do a thing otherwise prohibited under law. Powers under section 482 of the Code in such a case can be exercised in extremely exceptional circumstances such as there being apparent error on the face of the record or the order being obviously illegal. 8. In view of the aforesaid, I am not inclined to allow the prayer. This petition is dismissed.