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2009 DIGILAW 1545 (PAT)

Shyam Sunder Sah v. State of Bihar

2009-12-09

body2009
ORDER 1. Heard Counsel for the parties. 2. This application has been filed against the order dated 15.1.2008 passed by the 1st Additional Sessions Judge, Gopalganj in Criminal Revision No. 46 of 2007. 3. The facts are that the defence-Opposite Party before this Court had filed an application to bring on record the case diary of Hussainganj Police Station Case No. 178 of 1990 after the closure of evidence on 21.1.2002. The first petition to bring the case diary on record was filed on 1.9.2003 which was rejected by the Trial Court on 24.9.2003. Against the order rejecting the application, the Opposite Party moved before the Revisional Court and the then Sessions Judge, Gopalganj rejected the revision application on 9.2.2004. The Opposite Party being dissatisfied by the rejection, again filed a petition on 19.7.2006 praying therein that they may be permitted to exhibit the case diary of Hussainganj Police Station Case No. 178 of 1990. The Trial Court by Annexure-2 again rejected the application on 2.8.200e. Against the order of rejection, the Opposite Party moved before this Court and filed Criminal Misc. No. 47081 of 2006 challenging the order dated 25.9.2006 passed by the Judicial Magistrate, Gopalganj in Trial No. 2418 of 2006. This Court passed an order on 9.1.2007 which reads as follows:- "Learned Counsel for the petitioners prays for permission to withdraw this application. Permission is accorded. This application is dismissed as withdrawn." 4. The third attempt has been made by the Opposite Party before the Trial Court and a petition was filed on 11.9.2006 repeating the prayer to allow the defence to exhibit the case diary of Hussainganj Police Station Case No. 178 of 1990. The Trial Court by order dated 25.9.2006 rejected the prayer of the Opposite Party holding that the two cases were not interlinked with each other. The Opposite Party filed a revision application which was heard by the 1st Additional Sessions Judge, Gopalganj who reversed the order of the Trial Court dated 25.9.2006 and allowed the prayer of the Opposite Party by saying that under Section 311 of the Code of Criminal Procedure, the Court ought to allow the parties to examine or bring on record any materials which would serve the ends of justice. 5. 5. The issue that arises before this Court is whether the Revisional Court would have allowed the application of the Opposite Party after it has been rejected on two occasions firstly by order dated 9:2.2004 and secondly when the application was withdrawn by the Opposite Party before this Court. 6. In my opinion, the order of the 1st Additional Sessions Judge, Gopalganj is illegal on the ground that the 1st Additional Sessions Judge could not have sat over the order of the High Court, once an application had been withdrawn, for whatever reasons, the Court below could not have reconsidered the matter. In all fairness, it appears that this aspect of the matter was not pointed out to the 1st Additional Sessions Judge, Gopalganj although the same ought to have been brought on record by either party. 7. I also find that the prayer made by the Opposite Party to allow them to exhibit the case diary of Hussainganj Police Station Case No. 178 of 1990 is not proper on merits. The evidence was closed in this case on 21.1.2002. The fact that there was previous enmity between the parties and that they were on litigating terms with each other, and criminal cases were pending between them was well known to the Opposite Party and therefore, it cannot be said that he had no knowledge of this fact and the prayer made after the closure of evidence in the year 2003 after a delay was not warranted. The parties concerned must apply due care in prosecuting their cases and cannot be allowed to take up a defence as, an afterthought, as it would amount to trying, to fill up a lacuna in this case. It is also obvious that because of the repeated petitions filed by the Opposite Party, the decision and judgment in the trial is being delayed and therefore, this Court finds that on all of three counts, the order passed by the 1st Additional Sessions Judge, Gopalganj is unwarranted. 8. Accordingly, the order dated 15.1.2008 passed by the 1st Additional Sessions Judge, Gopalganj in Criminal Revision No. 46 of 2007 is quashed and it is directed that the trial should proceed and be concluded within the shortest possible time. 9. This application is thus allowed.