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2007 DIGILAW 78 (JHR)

Shailesh Mahto v. State of Jharkhand

2007-02-09

D.G.R.PATNAIK

body2007
Order The petitioner in this application has prayed for quashing the order dated 28.6.2006 passed by the Additional Sessions Judge, FTC II, Bermo at Tenughat in S.T. No. 58 of 1998 whereby the petition filed under section 311 Cr.P.C. on behalf of the prosecution for examining certain witnesses was allowed. 2. The petitioner had objected to the prayer made by the prosecution on the ground that the prayer is not maintainable, since sufficient opportunity was already availed by the prosecution for adducing evidence and the prosecution evidence were closed and therefore the prayer of the prosecution to permit it to examine further witnesses would amount to filling up lacunae. 3. Learned counsel for the petitioners submits that the case was registered on the basis of the FIR of the informant lodged on 1.3.1996 for offences under sections 147/148/447/323/324/325/307 IPC. Charge-sheet was submitted by the investigating officer for the aforesaid offences on 18.6.1996, followed by a supplementary charge-sheet submitted on 30.11.1996 whereafter cognizance of the offence was taken by the learned CJM and the case was committed to the court of 'sessions in the year 1998. Eventually, charge was framed against the accused petitioners on 17.2.2003 by which trial had commenced. The first witness was examined by the prosecution on 19.11.2003. 2nd witness was examined on 11.12.2003. Two more witnesses were examined on 9.1.2004 followed by examination of 5th witness on 9.12.2004. After lapse of about 10 months, 6th witness was examined by the prosecution on 26.10.2005. Considering the delay in examination of the witnesses, the court had allowed an opportunity to the prosecution by way of last chance to examine remaining witnesses on 21.1.2006. Since the prosecution had failed to comply with the order not only on 21.1.2006, but also on the next date i.e. 27.2.2006, the trial court had closed evidence of the prosecution by its order dated 27.2.2006, posting the case for defence evidence and arguments. Yet, after more than two months of the aforesaid order, the prosecution had filed its petition on 4.5.2005 under section 311 Cr.P.C. praying for allowing it to examine further witnesses. Yet, after more than two months of the aforesaid order, the prosecution had filed its petition on 4.5.2005 under section 311 Cr.P.C. praying for allowing it to examine further witnesses. The petitioner had opposed the prayer by filing rejoinder, but despite the objection the trial court had allowed the prayer of the prosecution by the impugned order dated 28.6.2006 without considering the fact that the trial since after its commencement in the year 2001, could not be complete even after five years and the delay being caused entirely on account of the slackness of the prosecution. Learned counsel further adds that by passing the impugned order, the trial court has virtually recalled its order dated 27.2.2006 by which the prosecution evidence was closed. It is further stated that the court below has erred in failing to consider that the prosecution has not offered any satisfactory explanation as to why it had not examined the witnesses earlier prior to the closing of the prosecution evidence, even though two of them are official witnesses. Learned counsel adds that the learned court below has erred in observing that the informant, the doctor and the investigating officer are essential for the purpose of just decision of the case without appreciating the fact that the injured witnesses as well as the doctor who had examined them were already examined by the prosecution. 4. Learned counsel for the State seeks to justify the impugned order of the court below by contending that the order indicates that power under section 311 Cr.PC. was invoked by the trial court for the purpose of just decision of the case. 5. The details of the dates stated by the petitioners clearly indicate that the trial had commenced after framing of charge in the month of February, 2001 and thereafter the prosecution had availed about 5 years to adduce its evidence and during this period, out of ten witnesses named in the charge-sheet, it had examined only six witnesses and had continued to seek adjournment one after another for examining the remaining witnesses. The trial court after considering the delay had allowed last opportunity to the prosecution to examine its witnesses. It appears that the prosecution did not avail the opportunity on the date fixed and on the following date also, and a result thereof, the trial court had rightly closed further opportunity to the prosecution to adduce its evidence. The trial court after considering the delay had allowed last opportunity to the prosecution to examine its witnesses. It appears that the prosecution did not avail the opportunity on the date fixed and on the following date also, and a result thereof, the trial court had rightly closed further opportunity to the prosecution to adduce its evidence. It further appears that the prosecution has not offered any explanation as to why it had not examined the witnesses whom it had sought to examine after closure of the prosecution evidence, although such witnesses being named in the charge-sheet, were available to the prosecution. Yet, the prosecution chose to invoke the trial court's power under section 311 Cr.P.C. for examining the remaining witnesses claiming that they are important and material witnesses. 6. The fact that the witnesses sought to be examined by the prosecution are material witnesses was within the knowledge of the prosecution since the commencement of the trial and yet, it had not examined the witnesses during the protracted period of five years. It further appears that the prosecution has not taken any effort even to seek the trial court's assistance for summoning witnesses during the entire period, when opportunity was given to the prosecution to adduce its evidences. 7. In my opinion, the facts and circumstances indicate that the trial court was not justified in allowing the petition filed by the prosecution under section 311 Cr.P.C. for enabling the prosecution to examine its witnesses even after the prosecution evidence was closed by its earlier order. The learned trial court appears to have ignored the fact that the protracted trial has already caused grave prejudice to the petitioners who have been attending the court since the date of the institution of the case against them in the year 1996. The trial court also appears to have failed to consider that the prosecution has not offered any explanation for non-examination of the witnesses prior to the date of the order when the evidence of the prosecution was closed. Allowing the prayer of the prosecution at such a belated stage would amount to grave miscarriage of justice to the affected party. 8. In view of the foregoing facts and circumstances of the case, I find merit in this application. Accordingly, this application is allowed. The order dated 28.6.2006 passed by the learned Addl. Allowing the prayer of the prosecution at such a belated stage would amount to grave miscarriage of justice to the affected party. 8. In view of the foregoing facts and circumstances of the case, I find merit in this application. Accordingly, this application is allowed. The order dated 28.6.2006 passed by the learned Addl. Sessions Judge, Bermo at Tenughat, in Sessions Trial No. 58 of 1998 is hereby set aside. 9. The trial court is directed to dispose of the case possibly within three months from receipt of a copy of this order on the basis of the evidence available on the record after giving an opportunity to the accused/petitioners to adduce evidence, if any, The petitioners shall cooperate with the trial court for disposal of the case within the period stipulated.