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2008 DIGILAW 69 (JHR)

Sunil Kumar Dhar v. State of Jharkhand

2008-01-28

D.K.SINHA

body2008
Order The petitioner has invoked the jurisdiction under Article 226 of the Constitution of India with the prayer for issuance of an appropriate writ for quashing the order impugned dated 2.7.2007 passed by the and Additional Sessions Judge, Singhbhum West at Chaibasa in S.T. No.211 of 2003 whereby the petition filed under Section 311 of Cr. PC. on behalf of the complainant was allowed permitting the complainant-respondent no.2 to adduce evidence. 2. The brief fact of the case as contained in Complaint Case No. 46 of 2002 was that the Respondent No. 2-complainant had filed the Complaint Case in the Court of CJM, Chaibasa against the petitioner and four others who were admittedly his full brothers, sister and nephews residing in a common house with the allegation of assault and attempt to commit murder in furtherance of their common intention and accordingly, charge under sections 323/379/341/427/307 read with Section 149 of the Indian Penal Code was framed after due enquiry on commitment by the Court of and Additional Sessions Judge and the petitioner alongwith others were put on trial. 3. The learned counsel for the petitioner-accused submitted that the complainant-Respondent NO.2 was pursuing his case through private lawyer without the consent of the Additional Public Prosecutor in contravention of Section 301 of Cr. P.C. After framing 01 charge four witnesses including complainant-respondent NO.2 were examined. Respondent NO.2 appeared as PW. 4 on 20.2.2006 but he declined to adduce evidence in the trial court on the ground that since he had filed some applications before the Jharkhand High Court, he would not at that stage and accordingly he was discharged by the court after recording his statement as aforesaid (Annexure-3). The learned counsel further pointed out that the respondent no. 2 preferred a petition on 2.7.2007 before the trial court for his recall and other witnesses under Section 311 Cr. P.C. for evidence. 4. The Trial Judge by impugned order dated 2.7.2007 observed that on the petition preferred on behalf of the opposite party No.2 under Section 311 of Cr. P.C. Sri U.S. Vidyarthi, Addl. Public Prosecutor appeared and submitted that the petition under Section 311 Cr. P.C. was not filed through him in contravention of Section 311 of Cr. P.C. and therefore, he had nothing to say on it but at the same time he had no objection, if time was granted. After hearing the parties the learned and addl. Public Prosecutor appeared and submitted that the petition under Section 311 Cr. P.C. was not filed through him in contravention of Section 311 of Cr. P.C. and therefore, he had nothing to say on it but at the same time he had no objection, if time was granted. After hearing the parties the learned and addl. Sessions Judge further observed:- "After considering all the facts, and moreso, when the disposal of this trial is lingering since fairly long time from 25.7.2005 to drop the curtain and for meeting the ends of justice, I feel that the informant and other• remaining witnesses should be examined for drawing a rightful and legal conclusion. Under such circumstances petition uncer Section 311 of the Cr. P.C. is allowed. The informant must remain present on the date fixed for his evidence along with his other witnesses. He should also furnish the name of other witnesses whom he intends to examine in this case. He will file his petition through the conducting A.PP in accordance with the provision containing in the Cr. P.C. Put up on 12.7.2007 for recording evidence of the informant and other witnesses. All the accused persons are directed to remain physically present in the court on the date fixed." 5. Mr. Ananda Sen, the learned counsel, assailed the impugned order on the ground that the Successor Court tried to review the order passed by the Predecessor Court whereby prosecution evidence was closed and such reopening was prohibited under Cr. P.C. The prosecution case was closed twice as, it would be evident from the record and again it was opened on the instance of the complainant-Respondent No.2 to fill up the lacuna without plausible explanation and in that manner the petitioner would be highly-prejudiced if the respondent No. 2 and his witnesses would be allowed to depose. 6. Mr. D.K. Prasad, the learned counsel for the respondent no. 2 submitted that the order passed under Section 311 of the Cr. P.C. by the trial court by allowing the complainant-respondent No.2 for the just decision of the case cannot be viewed as a review of the order passed by the Predecessor's court. Advancing his arguments Mr. Prasad further submitted that Section 311 of the Cr. 2 submitted that the order passed under Section 311 of the Cr. P.C. by the trial court by allowing the complainant-respondent No.2 for the just decision of the case cannot be viewed as a review of the order passed by the Predecessor's court. Advancing his arguments Mr. Prasad further submitted that Section 311 of the Cr. P.C. empowers the trial Court to summon material witness or examine the person present at any stage of any enquiry, trial or other proceedings or recall and re-examine any person already examined if his evidence, in the opinion of the court, appears it to be essential to the just decision of the case. Section 311 of Cr. P.C. is not limited either for the benefit of the informant or for the benefit of the accused and it was held that it would not be an improper exercise of the powers of the court of examining a witness under this Section only because evidence supports the prosecution case and not accused. Mr. Prasad further submitted that summoning the witnesses by recalling or re-examining the respondent no. 2 in the instant case, in no manner cause prejudice to the petitioner and other accused persons as the complainant and his wife who were the victims of assault and threat were not earlier examined. The impugned order, therefore, in no manner requires interference in the writ jurisdiction and therefore, it may be dismissed. 7. Having regard to the facts and circumstances of the case, it is well settled that the scope of Section 311 of Cr. P.C. is wide and discretionary in nature to be invoked for the just decision of the case. In the instant case the complainant Respondent NO.2 though had appeared in the witness box as P.W. No. 4 but he declined to adduce evidence on the ground that his petition was pending before this High Court. On the stated ground for refusal, his deposition was not recorded by the trial court for the convincing reasons. An order under Section 311 Cr. P.C. passed by the trial court at any stage of any enquiry, trial on other proceedings cannot be viewed as review of the earlier order of the Predecessor's Court. Therefore, in the circumstances, I do not find any ground to interfere with the impugned order dated 2.7.2007 whereby the. trial court below in exercise of power under Section 311 of Cr. Therefore, in the circumstances, I do not find any ground to interfere with the impugned order dated 2.7.2007 whereby the. trial court below in exercise of power under Section 311 of Cr. P.C allowed the complainant-respondent no. 2 to depose in the trial court with the modification that his wife being the alleged victim of the assault may also adduce evidence on the next day fixed by the trial court on receipt of the copy of this order or the certified copy whereof presented on behalf of either of the parties. 8. With the modification in the order impugned dated 2.7.2007 this .writ petition is dismissed.