Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 106 (PAT)

Ravi Bhushan Ojha v. State Of Bihar

2007-01-15

ABHIJIT SINHA

body2007
Judgment 1. The informant of Buxar (Town) PS. Case No. 222 of 1987 through this application has prayed for quashing of the order dated 21.9.2006 passed therein by the learned Chief Judicial Magistrate, Buxar. By the said order the learned court has rejected the petition filed by the informant praying for re-examination of the prosecution witnesses under Sec.311 Cr. PC. after the court had arrayed two additional persons as accused under Sec.319 Cr. PC. and had summoned them to stand trial alongwith those others who had already been sent up. 2. The prosecution case is based on the sanha given by the injured informant, Ravi Bhushan Ojha, at the Buxar (Town) P.S., inter alia, alleging that on 29.11.1987 at about 12.45 P.M. while he was en route to Buxar Bazar and reached the Sidhnath Ghat More, suddenly, Sheo Bihari Tiwary dealt a lathi blow on his head from behind causing him injury. This was followed by lathi blows by Jai Narain Pandey @ Guddu, Bishnu Deo Pandey and Paramath Nath Pandey causing the informant injuries on several parts of his body. The immediate cause of the occurrence is said to be land related disputes. 3. The police after due investigation submitted a charge-sheet only against Sheo Bihari Tiwary and Bishnu Deo Pandey as it transpired during investigation that Paramath Nath Pandey and Jai Narain Pandey were out of station and lived at another place and accordingly charges under Sections 325/34 I.P.C. was framed against the two. 4. It appears that in course of the trial witness Markandey Choubey deposed and named all the four persons named in the sanha as participants in the occurrence and on the basis thereof the Public Prosecutor filed a petition under Sec.319 Cr.P.C. for arraying Paramath Nath and Jai Narain as accused also and the same was allowed by the learned court and the newly added accused were charged under Sec.323 I.P.C. by order dated 22.6.1994. 5. It is the assertion of the learned counsel for the petitioner that the said case was pending for recording evidence but suddenly on 16.9.1996 the prosecution evidence was closed after recording the deposition of a formal witness and the statement of the accused under Sec.313 Cr.P.C. was also recorded on that day. It has further been submitted that when the informant came to know of the development from the Public Prosecutor, he filed the petition under Sec.311 Cr. It has further been submitted that when the informant came to know of the development from the Public Prosecutor, he filed the petition under Sec.311 Cr. PC. on 20.9.2006 for taking his evidence but the same was dismissed on the ground that the case was a very old one and the evidence had been closed on 16.9.1996. In this connection it was submitted on behalf of the petitioner that on examination of the records it transpired that no step at all had been taken by the court to summon or notice any of the witness of the prosecution including the informant and as such the interest of justice had suffered. 6. Admittedly, the prosecution evidence had been closed and the statement of the accused was recorded as far back as on 16.9.1996. It is beyond comprehension to fathom why the case had not been disposed of notwithstanding the passage of ten years. No explanation for this inordinate delay is forthcoming. Perhaps the justice delivery system owes an explanation for this. 7. There is yet another aspect of the matter. It is strange how the court passec the impugned order when it had not even issued summons or notice to the prosecution witness including the informant. Procedural law demands that proper summons should be issued to all the witnesses cited in the charge-sheet. If the summons fail to secure the attendance of the witnesses resort has to be taken to bailable and thereafter non-bailable warrant of arrest and even if after that the wiinesses do not appear the court is empowered to resort to issuance of processes under Sections 82 and 83 Cr.P.C. However, in the instant case as it appears from the assertions of the learned counsel for the petitioner no summons at all was sent to any of the prosecution witnesses including the informant. This happens to be a graver omission which is required to be rectified. The court below fell in error in closing the prosecution evidence as also rejecting the petition of the informant by the impugned order when even summons had not been issued to the witnesses. 8. This happens to be a graver omission which is required to be rectified. The court below fell in error in closing the prosecution evidence as also rejecting the petition of the informant by the impugned order when even summons had not been issued to the witnesses. 8. Even otherwise the very fact that Paramath Nath Pandey and Jai Narain Pandey were impleaded under Sec.319, Cr.P.C. it was incumbent upon the court to have summoned those witnesses who had been examined before their addition as accused for the impleaded accused had a right to cross-examine those witnesses. The court below had fallen in error also in this regard. 9. Due regard being had to the facts and the circumstances of the case, the impugned order cannot be sustained in law and has to be set aside. 10. Accordingly, this application is allowed and the court below is directed to issue summons to the witnesses including the informant and dispose of the trial as expeditiously as possible preferably within four months from the date of receipt of the order regard being had to the protracted litigation.