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2007 DIGILAW 1399 (PAT)

Brahmdeo Yadav v. State of Bihar

2007-08-22

body2007
ORDER 1. Heard the learned counsel for the petitioner as also learned A.P.P. for the State. 2. This application is for quashing the order dated 20.4.07 passed by the learned Presiding Judge, Fast Track Court No. IV, Darbhanga in Sessions Trial No. 42/03 whereby he has denied opportunity to the prosecution to adduce evidence by rejecting time petition filed on its behalf and having closed prosecution evidence had directed all the accused to be physically present in court on the next date for their statement under Section 313 Cr. P.C. A prayer has also been made for direction to issue to the learned trial court to examine all the prosecution witnesses whose names appeared in the list of the witnesses furnished under Section 204 Cr. P.C. 3. It appears that pursuant to the order of this court dated 15.12.06 passed in Cr. Misc. No. 52042/06 allowing the petitioner to adduce evidence of his witnesses on the date to be fixed by the court, one witness was examined and on 20.4.07 witness Pawan Yadav was in attendance by filing HAZARI However, as he allegedly developed excruciating abdominal pain he went to Tara Memorial Nursing Home where he was medically examined and treated. However, as it transpired that when the case was called for hearing for the examination of the witnesses at 3.30 P.M. the learned trial court was informed of the situation and prayer was made by the prosecution for adjournment of the case for the next date for producing prosecution witnesses. However, the same was rejected by the impugned order, primarily relying on the statement of the learned counsel for the defence who stated in court that the witness Pawan Yadav had already gone to Delhi for the treatment of his brother. It is said that on the very next date i.e. 24.4.07 a petition alongwith attendance of one prosecution witness, namely, Rajaram Yadav was filed by the learned A.P.P. for his examination but the same was rejected on the ground that the evidence of the prosecution was closed on 20.4.07. 4 It has been submitted that the complainant-petitioner was concerned to get trial concluded on day to day basis and also ready to adduce all the prosecution witnesses whose names appeared in the list under Section 204 Cr. P.C. within a fixed period as has been prescribed by the Hon'ble Court so that justice may be done. 4 It has been submitted that the complainant-petitioner was concerned to get trial concluded on day to day basis and also ready to adduce all the prosecution witnesses whose names appeared in the list under Section 204 Cr. P.C. within a fixed period as has been prescribed by the Hon'ble Court so that justice may be done. Learned counsel sought to point out that not permitting examination of the witnesses on behalf of the prosecution is not only illegal and mala fide but fatal to the prosecution case and was contrary to the order dated 15.12.06 passed by this court. 5. On the contrary opposite party no.2 submitted that the learned court below was fully justified in rejecting the petition since sufficient opportunities had been given to them and that too in the light of the order of the Hon'ble Court. 6. Admittedly this court while disposing of Cr. Misc. No. 52042/06 had given liberty to the prosecution to produce its witnesses as per direction of the court on each date or the date as fixed by it as per convenience of the court's diary and the court was granted freedom to shut down the prosecution evidence and proceed further if no witness was produced. 7. In the instant case, it is not a fact that the witness was not in attendance, it was merely an act of God that the witness who was in attendance had suddenly fallen ill and had to go for medical attention. The learned Addl. Sessions Judge ought to have granted time to the prosecution even on humanitarian ground when the fact of illness of the witness in attendance was mentioned to it. Even on the following date when a witness was in attendance by filing Hazari, the court ought to have permitted the prosecution to adduce evidence Natural justice demands for full opportunity to be given to the parties to adduce evidence in support of their respective cases. The order of this court in Cr. Misc. No. 52042/ 06 nowhere had put a bar on the Addl. Sessions Judge to deny opportunity to the prosecution to adduce evidence merely because the witness had fallen ill and the learned Addl. Sessions Judge in my opinion had acted with material irregularity in rejecting prayer of the prosecution. 8. The order of this court in Cr. Misc. No. 52042/ 06 nowhere had put a bar on the Addl. Sessions Judge to deny opportunity to the prosecution to adduce evidence merely because the witness had fallen ill and the learned Addl. Sessions Judge in my opinion had acted with material irregularity in rejecting prayer of the prosecution. 8. Due regard being had to the facts and circumstances of the case the impugned order dated 20.4.07 is quashed and the learned Addl. Sessions Judge in Session of the Sessions Trial No. 42/03 is directed to permit the prosecution to adduce evidence on its behalf of those witnesses who have been named by the prosecution on a day to day basis. 9 In the result, this application is allowed.