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2007 DIGILAW 73 (JHR)

Brij Nandan Prasad Verma v. State of Jharkhand

2007-02-07

D.G.R.PATNAIK

body2007
Order The petitioner in this application has prayed for quashing the order dated 30.11.2006 passed by the Special Judge, CBI, (AHD) in R.C. No. 43(A)/96 whereby prayer of the petitioner for calling for certain documents from the office of the Director, Animal Husbandry Department, Bihar, Patna, was refused and further opportunity to the petitioner to adduce evidence in his defence has been closed and the case was posted for arguments. 2. Learned counsel for the petitioner submits that the petitioner is facing trial in the aforesaid case and the prosecution had led its evidence by examining its witnesses and after closure of the prosecution evidence, the petitioner was called upon to adduce evidence in his defence. The petitioner had earlier prayed to the trial court to call for certain documents which were in possession of the office of the Director, Animal Husbandry Department, Bihar, Patna. The prayer was allowed and a notice was issued to the Director, Bihar, Patna to produce the documents. Yet, by the impugned order, the trial court had closed further opportunity to the petitioner to adduce evidence and posted the case for hearing final arguments. 3. Assailing the impugned order, the learned counsel for the petitioner submits that the impugned order has perpetrated injustice to the petitioner since the documents are required essentially for using the same in petitioner's defence in respect of charges against him. Learned counsel explains that earlier the trial court had accepted petitioner's prayer and had issued notice directing the Director of the Animal Husbandry Department, Bihar, Patna, to produce the documents and in compliance of the order, the petitioner had deposited Rupees three thousand towards 'messenger cost and other charges on account of T A etc.; yet, without awaiting the receipt of reply to the notice sent by the court, the trial court had abruptly closed the defence evidence by the impugned order on the ground that that the petitioner has failed to produce his witness. Learned counsel further adds that since the documents were in the custody of the Director concerned at Patna and were not in possession of the petitioner, the petitioner could not possibly produce the same and, therefore, had sought the court's assistance for procuring the documents and such assistance once allowed, the court has wrongly construed that it was the duty of the defence to produce the documents and its witnesses. 4. 4. Learned counsel appearing on behalf of the CBI while inviting attention to the notice issued by the trial court submits that the letter was issued on 10.11.2006 and was received in the office of the Director, Animal Husbandry Department, Bihar, Patna on 14.11.2006. Reply thereto was promptly despatched by the Director, Animal Husbandry Department, Patna, on 18.11.2006, stating therein that the documents sought for are not readily available in the office and as and when the same are traced out, it would be produced before the trial court. Learned counsel explains that in view of the above fact, it is apparent that the documents are not available in the office of the Director, Animal Husbandry Department and as such, the petitioner's claim that the documents are in possession of the Director, Patna is apparently incorrect. Learned counsel adds that the trial has progressed considerably and it has reached the stage of finality since it is fixed for hearing arguments of the parties and it is apparent that by filing the instant application, the petitioner intends to stall the trial of the case. 5. The point of consideration is whether after having acceded to the prayer of the petitioner for calling for the documents, the trial court could refuse adequate opportunity to the defence to produce its evidence even without awaiting the response to the notice issued by it. 6. From perusal of the records, it appears that by order dated 6.11.2006 the trial court had directed to issue notice to the Director, AHD, Bihar, Patna, to produce documents prayed for by the petitioner and had also directed the petitioner to deposit necessary costs therefor which the petitioner had deposited and thereafter the notice was issued by the court. It appears that the reply to the aforesaid notice of the court was sent by the Director, AHD, on 18.11.2006, which was placed before and seen by the court on 8.12.2006. 7. Learned counsel for the CBI ex-plains that as a matter of fact the letter was sent by speed post on 23.11.2006 and it does not take more than 2 days for delivery of letters by speed post and it was only after receiving the letter that the court below had passed the impugned order being satisfied that the documents called for are not available in the office of the Director of the Animal Husbandry Department. On perusal of the copy of the letter dated 18.11.2006 of the Director, AHD, produced by the learned counsel for the CBI, it appears that it was seen by the trial court on 8th December, 2006. It is apparent therefore that on the date when the impugned order was passed i.e. on 30.11.2006, the trial court had not received any reply from the Director, AHD, nor could the trial court be aware as to whether the documents were in fact available in the office of the Director or not. 8. I find substance in the ground taken by the petitioner. The petitioner has not been afforded adequate opportunity for producing evidence in his defence. Accordingly, this application is allowed. The order dated 30.11.2006 passed by the trial court is set aside. The trial court shall issue fresh notice in pursuance of its earlier order dated 6.11 .2006 passed in the for production of the documents sought for by the petitioner and directing the production within one month from the date of receipt of the court's letter. In the event the documents are not produced within the time stipulated, the petitioner may file authenticated copies of the documents before the court below according to the due procedure of law.