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2007 DIGILAW 1452 (PAT)

Md. Yusuf Azad v. State Of Bihar

2007-08-31

ABHIJIT SINHA

body2007
Judgment 1. Heard Sri S.K. Mishra, the learned counsel for the petitioner and Sri Jharkhandi Upadhaya, the learned A.P.P. for the State. Although O.P. No. 2, the complainant, was validly served with notice, she has chosen not to appear to contest this application. 2. Through this application, the petitioner has sought to question the legality of order dated 5.5.2006 passed by learned Sessions Judge, West Champaran at Bettiah in Cr. Revision No. 92 of 2006 whereby while approving the order dated 13.4.2006 passed by Sri N.B. Lal Judicial Magistrate, First Class, Bettiah, in Complaint Case No. 235C of 1999 allowing the complainant to examine witness under Section 311 Cr.P.C, has dismissed the revision as not being maintainable in view of the Magisterial order being an interlocutory order. A further prayer has been made for quashing the order dated 13.4.2006 of the learned Judicial Magistrate as also the entire proceeding. 3. It appears that the petitioner herein had preferred Matrimonial Suit No. 29 of 1998 for restitution of conjugal rights and as notwithstanding several attempts by various agencies no reconciliation between the two parties was possible, the relief in the Suit was amended and a decree of divorce was prayed for which was eventually decreed by order dated 21.2.2003 passed by Sri Md. Shamim, learned 3rd Additional District Judge, East Champaran at Motihari. It also appears that the decree of divorce was passed on the basis of a compromise petition filed by the parties which formed a part of the decree. It further appears from perusal of the compromise petition (Annexure-5 in this application) that the wife-O.P. No. 2 had agreed to withdraw all litigations against her husband and that she would not lay any claim against each other for dower debt, maintenance including benefits relating to the service of the husband or the share in the property of the husband. 4. However, as it appears, throwing the compromise petition and the decree passed in Matrimonial Suit No. 29 of 1998 on the basis thereof to the winds, O.P. No. 2 herein persisted with the instant complaint case to vex the divorced husband. It appears that in the complaint case after framing of charges against the petitioner, several dates were fixed for the production and examination of the witnesses of the complainant but as no witness was produced the complainants evidence was eventually closed by order dated 2.2.2006. It appears that in the complaint case after framing of charges against the petitioner, several dates were fixed for the production and examination of the witnesses of the complainant but as no witness was produced the complainants evidence was eventually closed by order dated 2.2.2006. It further appears that on the basis of a petition filed on 13.2.2006 under Section 311 Cr.P.C. the learned Magistrate allowed the petition by order dated 13.4.2006 on the ground that the complainant was present in another court. 5. The impugned Magisterial order dated 13.4.2006 is sought to be assailed on the ground that the same amounts to a review/recall of the earlier order dated 2.2.2006 and that in view of the compromise petition followed by the decree in Matrimonial Suit No. 29 of 1998 the production of the petitioner was vexatious and an abuse of the process of the Court. 6. As stated earlier, O.P. No. 2 has not appeared and therefore her response is not available and the submissions of the petitioner remain unrebutted. 7. Admiittedly, the power under Sec. 311 Cr.P.C. is a discretionary power and it is manifestly the duty of the court to summon and examine any person whose evidence the court considers essential to the just decision of the case. It is, therefore, entirely in the discretion of the court to call and examine witnesses and the Public Prosecutor or the defence cannot demand as a matter of right to call and examine any witness not examined earlier. In the case of Sasi Thomas vs. The State, reported in [2007(1) PLJR 193(SC)], the Apex Court observed that the trial court is not powerless and if a case is made out then the court can exercise its discretionary jurisdiction under Sec. 311 Cr.P.C. 8. In the instant case, the complainant petitioner had filed a petition to the effect that she could not attend court on 13.2.2006 as she had to attend her case in a court at Motihari. She also filed a certified copy to show her presence before the Motihari Court. Having considered the same and the materials available on the record the learned Magistrate who was in seisin of the case thought it proper to summon the witnesses. 9. She also filed a certified copy to show her presence before the Motihari Court. Having considered the same and the materials available on the record the learned Magistrate who was in seisin of the case thought it proper to summon the witnesses. 9. As stated above, the power under Section 311 Cr.P.C. is a discretionary power which has been conferred on the court and it is that court alone who can judge the requirement or otherwise of summoning and examining the witnesses to arrive at a just decision in the case. The exercise of the discretionary power by the court should ordinarily not be interfered with since it is in seisin of the case and all matters are before it to decide whether a witness should be summoned and examined or not. 10. Having given my anxious thought to the materials available on the record, I am of the opinion that the learned Magistrate was justified in allowing the petition under Sec. 311 Cr.P.C. filed by the complainant-petitioner and the learned Sessions Court though dismissing the revision on the finding that the order was interlocutory had rightly held that the order impugned was not a case of recall or review of the previous order. Accordingly, the impugned order passed by the learned Magistrate is upheld and the application is allowed.