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2010 DIGILAW 263 (JHR)

Rinu Oraon v. State of Jharkhand

2010-02-19

D.K.SINHA

body2010
Order Both the petitions are arising out of common order impugned dated 28.4.2008 passed by the Additional Sessions Judge-I, Lohardagga in Sessions Trial No. 69 of 2006 by which the prayer made on behalf of the prosecution for recall of the order impugned dated 12.12.2007, by which the prosecution evidence was closed, was rejected. Notices were served upon the members of the Opposite Party in Cr.Revision No. 810 of 2008 except on the O.P. No.2 Bijay Oraon, who was reported to be dead by the process server. 2. Learned Counsel appearing on behalf of the informant as well as the State consistently submitted that the charge was framed against the members of the Opposite Party under Sections 327/307 I.P.C. and thereafter summons were issued to the prosecution witnesses. The witness Kiran Bala was in attendance before the Court on 12.12.2007 but the A.P.P. Incharge of the prosecution as was busy otherwise in different court in Sessions Trial No. 128 of 2007 he could not appear when the case was called out for evidence. He was taken by surprise to know that the evidence on behalf of the prosecution was closed in his absence. After closure of the evidence of the prosecution witness, the learned A.P.P. filed a petition under Section 311 Code of Criminal Procedure permitting the prosecution witnesses to be produced and examined for the ends of justice but it was also dismissed on 28.4.2008 and in this manner the prosecution and the informant were highly prejudiced. 3. None appeared on call on behalf of the O.P. though the notices were served upon them except upon the O.P. No. 2 Bijay Oraon. 4. It is evident from the order impugned that after the charge was framed on 12.6.2007 the date of evidence was fixed on 10.10.2007, 13.11.2007 as also on 12.12.2007 but since the prosecution did not examine the witness Kiran Bala who was in attendance, the evidence of prosecution was closed on 12.12.2007 itself. It was further stated in the impugned order that Section 311 of the Cr.P.C. was not attracted in the facts and circumstances of the case for re-opening of the prosecution evidence and that the Court had no jurisdiction to recall its own order. 5. I find that the Court was not justified while closing the evidence of the prosecution on the grounds as contained in the impugned order. 5. I find that the Court was not justified while closing the evidence of the prosecution on the grounds as contained in the impugned order. I further find that after framing of charge 3 dates were fixed thereafter consecutively for the examination of the prosecution witnesses and on 12.12.2007 though a lady witness was in attendance before the Trial Judge but she' could not be examined when the case was called out for the reasons explained that the A.P.P. was otherwise busy in another case and in such circumstances the learned Trial Judge ought to have taken moderate view by adjourning the case to another date, however, may be by giving last indulgence. But I find that the evidence was closed on the same day and even the petition under Section 311 Code of Criminal Procedure that was tiled on behalf of the prosecution was not entertained. I find that the prosecution has been highly prejudiced for such closure of evidence and therefore, the order impugned cannot be sustained under law. Though the Trial Court was justified in holding that he had no jurisdiction to recall its own order but the witness could have been permitted to be examined in exercise of the jurisdiction conferred under Section 311 Code of Criminal Procedure for the ends of justice and for revelation and unfolding of truth. 6. In the circumstances, the order impugned dated 12.12.2007 is set aside and the prosecution is permitted to produce the witnesses only on two consecutive dates to be given by the Trial Judge after receipt of the communication of this order and the record. 7. With this observation, both the petitions are allowed.