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2010 DIGILAW 68 (JHR)

Birendra Kumar Sinha v. State of Jharkhand

2010-01-12

D.K.SINHA

body2010
Order This criminal revision is directed against the order impugned dated 13.8.2009, passed by Sri B.K. Lal, Judicial Magistrate, Bokaro in C.P. Case No. 10 of 2002 by which the petition filed on behalf of the petitioner-accused on 15.5.2009 for issuance of sumlJ10ns to the defence witnesses was rejected. 2. Prosecution story in short was that an inspection team headed by Executive Magistrate visited the petrol pump of the complainant and it was alleged against the petitioner-accused that he had mischievously broken the seal of a petrol tank. It was further alleged against the petitioner that he had demanded gratification of Rs. 20,000/- to which the complainant-owner of the petrol pump refused to oblige him. 3. After evidence was complete and adduced on behalf of the complainant, petitioner-accused was examined under Section 313 of the Code of Criminal Procedure and thereafter, he was called upon to adduce evidence. In this connection, he filed a petition on 15.5.2009 by giving list of witnesses. Accused-petitioner requested the Court for issuance of summons to them, who were the official witnesses of the different Departments of the State of Jharkhand. 4. Assailing the impugned order, the learned counsel Mr. Mazumdar submitted that the learned Trial Magistrate rejected the petition without assigning any reason and to quote,- "This case is based upon the complaint petition. This one is not a proper way to issue summons to those officials for this criminal trial facing by-the accused. It can be adduced by the accused for his defence on his own cost. I am not in a position to issue summons to these witnesses as defence. Hence, the petition dt. 15.5.09 filed by the accused is hereby rejected and the case is put up on 3.9.09 for defence-evidence." 5. Advancing his argument, Mr. Mazumdar submitted that admittedly petitioner was a member of the raiding party, who detected irregularities committed in the petrol pump. For that, a case was instituted against the owner of the petrol pump, but in retaliation, petitioner was falsely implicated by the complainant to screen his misdeeds. Petitioner has simply requested the Court for issuance of summons to those witnesses in his defence, who are the members of the raiding party, but the request of the petitioner was denied without any reasoning and against the settled principles of law. Petitioner has simply requested the Court for issuance of summons to those witnesses in his defence, who are the members of the raiding party, but the request of the petitioner was denied without any reasoning and against the settled principles of law. Accused of this case is equally protected under the law as well to produce his witnesses and to seek assistance of the Court for bringing them in a witness box by issuing processes. 6. The learned Counsel relied upon the decision, reported in (2008)5 Supreme Court Cases 633 (T. Nagappa V5. Y.R. Muralidhar) whereby Hon'ble Apex Court widely discussed the rights accrued to the accused seeking assistance of the Court in bringing his witnesses in the witness box and to quote, "9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub-section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant." 7. None appeared on call on behalf of the opposite party No.2-complainant Sri Arjun Prasad Srivastav @ Arjun Prasad Sinha, though he entered appearance by executing vakalatnama. 8. Heard the learned A.P.P. appearing on behalf of the State. 9. Having regard- to the facts and circumstances, I find that the learned Judicial Magistrate grossly erred by not allowing the petition of the petitioner in view of the proposition of law referred to hereinbefore and the request was refused without assigning any cogent reason, therefore, the order impugned cannot be sustained in law. 10. 9. Having regard- to the facts and circumstances, I find that the learned Judicial Magistrate grossly erred by not allowing the petition of the petitioner in view of the proposition of law referred to hereinbefore and the request was refused without assigning any cogent reason, therefore, the order impugned cannot be sustained in law. 10. Accordingly, this criminal revision is allowed and the order impugned dated 13.8.2009, passed by Sri B.K. Lal, Judicial Magistrate, Bokaro in C.P. Case No.10 of 2002 is set aside and the Court is directed to issue summons to the witnesses at the behest of the accused petitioner to be examined within a period of two months on the cost borne by the petitioner.