Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 320 (JHR)

Santosh Kumar v. State of Jharkhand

2011-04-07

D.K.SINHA

body2011
Order Instant criminal revision. has been filed by the petitioner for quashment of the order dated 24.9.2010, passed by the learned Sub-Divisional Judicial Magistrate cum-Special Magistrate, C.B.I., Dhanbad in RC 11 A/2006(D), by which time petition filed on behalf of the. petitioner for cross-examination of the Investigating Officer was rejected and the evidence of the prosecution was closed. 2. Prosecution story in short was that an F.I.R. was instituted against the petitioner for the alleged offence under Sections 420/468/471 of the Indian Penal Code by the C.B.1. on the allegation that he dishonestly and fraudulently got his appointment letter to the post of Postal Assistant in the Postal Department, Ranchi, Circle Ranchi by producing fake and bogus certificate of Intermediate (Science) of the year 1995 showing the marks obtained as 789 out of full marks of 900 from the Bihar Intermediate Education Council, Patna. In the verification, it could be gathered that there was no candidate having the name of Santosh Kumar, son of Shri Rampur Ram bearing Enlistment No. BO-03748 vide Roll Code No. 1514/10230 in the record of Bihar Intermediate Education Council, Patna appearing from Jawahar Lal Nehru College, Dehri-on-Sone (Bihar) in the year 1998. 3. The grievance of the petitioner is that the C.B.I. had produced all the named prosecution witness and one Bipin Kumar Singh was examined and cross-examined and was discharged on 3.5.2010 as P.W.-11. On subsequent dates. i.e. 24.5.2010, 2.7.2010, 21.7.2010 and 26.8.2010, prosecution did not produce any witness. It is stated that conducting senior lawyer of the petitioner Shri A.C. Kumar was appointed as Special Prosecutor of C.B.I. on or about 18.9.2010, as such, he made over the brief to his junior only on 22.9.2010. On 23.9.2010, prosecution produced the Investigating Officer Shri Anil Bisht, though the counsel for the petitioner made request for deferment of the evidence of the Investigating Officer for a week but the court assured that he would get an adjournment for cross-examination of the Investigating Officer after his examination-in-chief was recorded in the court as he had come from the distant place. Junior counsel for the petitioner participated in the examination-in-chief of the Investigating Officer Shri Anil Bisht but the case was fixed on the next date i.e. 24.9.2010, as such, the junior counsel could not engage any senior so that cross-examination of the Investigating Officer could be conducted diligently and carefully. Junior counsel for the petitioner participated in the examination-in-chief of the Investigating Officer Shri Anil Bisht but the case was fixed on the next date i.e. 24.9.2010, as such, the junior counsel could not engage any senior so that cross-examination of the Investigating Officer could be conducted diligently and carefully. The order dated 23.9.2010 recorded by the Special Magistrate has been annexed wherein it is simply stated that the cross-examination of the Investigating Officer is deferred to 24.9.2010. As per advise of the junior counsel, the petitioner then engaged Shri P.N. Mukherjee, Advocate for cross-examination of P.W:-12 and on his instruction, for getting himself prepared, the junior counsel filed a time petition on 24.9.2010 for postponement of the cross-examination of the Investigating Officer in the backdrop as well that the petitioner was ready to pay the cost of adjournment but the same was rejected by the impugned order dated 24.9.2010 and in that manner, the petitioner has been denied the valuable right to cross-examine the important witness like Investigating Officer and for that his defence has been highly prejudiced. The learned Sub-Divisional Judicial Magistrate-cum-Special Magistrate observed that the time petition, which was filed for postponement of the date, was only with the intention to influence the course of justice. 4. The learned senior counsel Mr. V. Shivnath appearing on behalf of the petitioner submitted that for last preceding four dates, no witness was being produced on behalf of the prosecution and all of a sudden, attendance of Investigating Officer was filed on 23.9.2010 and by that time, the senior counsel for the petitioner Shri A.C. Kumar was appointed as Special Prosecutor of C.B.I. and therefore, he transferred the brief to his junior, who could not be able to arrange another lawyer and it was beyond the control of the petitioner but the learned court without taking into consideration of this aspect rejected the time petition, which was tiled on behalf of the petitioner on 24.9.2010 on presumption that the petitioner by taking adjournment wanted to influence the course of justice without any reason for such presumption and assumption. Petitioner was regularly in attendance before the Special Magistrate but this aspect was also ignored as he has been deprived of the valuable right to cross-examine an important witness like Investigating Officer. 5. Finally, the learned senior counsel Mr. Petitioner was regularly in attendance before the Special Magistrate but this aspect was also ignored as he has been deprived of the valuable right to cross-examine an important witness like Investigating Officer. 5. Finally, the learned senior counsel Mr. V. Shivnath submitted that at least an opportunity should be given to the petitioner by giving a time limit so as to cross-examine the Investigating Officer or any other witnesses produced on behalf of the prosecution. 6. Mr. Md. Mokhtar Khan, the learned counsel, appearing for the C.B.I. submitted that after sincere efforts of the prosecution, the Investigating Officer appeared before the Trial Magistrate after long time from remote place and the counsel for the petitioner was permitted to cross-examine the Investigating Officer on the next date on 24.9.2010. When the case was called out on 24.9.2010, a time petition was filed on behalf of the petitioner-accused, which was rejected by detailed order based upon reasoning. However, Mr. Khan submitted that if the court is at all desirous to allow the petition of the petitioner, a time frame may be given for the evidence so that Investigating Officer may be summoned with the margin of time. 7. Having regard to the facts and circumstances, I find substance in the argument advanced for the petitioner that he has been deprived of the valuable right to cross-examine the Investigating Officer as no sufficient opportunity was given to the defence for his cross-examination. Investigating Officer was examined on 23.9.2010 and 24.9.2010 was fixed for cross-examination but he could not be cross-examined on that day on the ground given in the time petition that he could not get another lawyer prepared for the cross-examination as the senior lawyer, who was conducting the case of the petitioner since the very beginning, was appointed by the Government as Special Prosecutor of C.B.I. and he then returned the brief. I find that the request made by the petitioner in this criminal revision needs consideration. Accordingly, the order impugned dated 24.9.2010 is set aside by directing the Sub-Divisional Judicial Magistrate-cum-Special Magistrate, C.B.I., Dhanbad to fix a date within four weeks of the receipt of this order either on presentation of the certified copy of this order by the petitioner or communication through FAX from this Court, whichever would be earlier, so that the Investigating Officer may appear on receipt of the summons for his cross-examination. 8. 8. With these observations, this criminal revision is allowed.