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2013 DIGILAW 828 (PAT)

Surya Narayan Yadav v. State of Bihar

2013-07-16

GOPAL PRASAD

body2013
ORDER 1. Heard. 2. This is a petition for quashing the order dated 11.10.2012 passed by the learned Ad hoc Additional District Judge – 1st, Supaul in Sessions Trial No. 51 of 2005/244 of 2005 by which the petition under Section 311 Cr.P.C. has been rejected. 3. On perusal of the records, it appears that the charge has been framed on 02.09.2006 and since then 11 witnesses have been examined. However, the petitioner, the Investigating Officer and the Doctor have not been examined and the case has been closed by order dated 30.05.2012 and thereafter the statement of the accused persons have been recorded. However, subsequently, a petition was filed on 22.06.2012 under Section 311 of the Cr.P.C. for examination of the petitioner, the Investigating Officer and the Doctor and a prayer has been made that the petitioner is ready to get the witnesses examined under a limited period. However, petition has been rejected by the Sessions Judge on the ground that the charge has been framed on 02.09.2006 and thereafter 11 witnesses have been examined on behalf of the prosecution and for the evidence of the petitioner and the Investigating Officer non-bailable warrant of arrest has been issued on 17.11.2009, 18.03.2010, 24.03.2011, 20.07.2011 and 17.01.2012 through the Superintendent of Police, Supaul but they did not appear and so the case was lodged under Section 311 of the Cr.P.C. and also on the ground that the prosecution cannot be allowed to fill up the lacuna in petition under Section 311 of the Cr.P.C. 4. Learned counsel for the petitioner, however, contended that the case is not of lacuna and in the interest of justice the evidence of the Investigating Officer, Doctor and the petitioner is required, particularly in view of the fact that the case is of water-tight and relied upon a decision delivered in the case of Shailendra Kumar Versus State of Bihar & Others reported in (2002) 1 SCC 655 . However, it was held that Section 311 empowers the court to summon material witnesses though not summoned as witnesses and to examine or recall and re-examine if their evidence appears to it to be essential to the just decision of the case. However, it was held that Section 311 empowers the court to summon material witnesses though not summoned as witnesses and to examine or recall and re-examine if their evidence appears to it to be essential to the just decision of the case. Section 311 reveals that it is of a very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the courts function to render just decision by examining such witnesses, at any stage is not, in any way, impaired and in the circumstance allowed the petition under Section 311 of the Cr.P.C. 5. However, having regard to the fact that the case is a murder case, the examination of the petitioner, doctor and Investigating Officer is of immense importance. It is true that the laches is on the part of the petitioner that even after framing of charge in the year 2006 and 11 witnesses have been examined in this case but the petitioner did not choose to depose. However, so far the rejection on the ground that allowing the witnesses to examine will mention the lacuna in the prosecution, however, in the case of Rajendra Prasad Versus Narcotic Cell reported in 1999(6) SCC 110 , the Apex Court has held that a lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. 6. However, under the facts and circumstances of the case, it was the prime duty of the Court to examine the Investigating Officer and the Doctor who are the most important and relevant witnesses in a murder trial to prove the corpus delecti and hence, the justice demands the examination of the Doctor and the Investigating Officer. 7. However, having regard to the fact that there is already delay in disposal and the laches also on behalf of the petitioner to examine himself as witness when charge was framed in 2006 and hence, the impugned order is set aside, subject to the condition of payment of cost of Rs.3,000/-. 7. However, having regard to the fact that there is already delay in disposal and the laches also on behalf of the petitioner to examine himself as witness when charge was framed in 2006 and hence, the impugned order is set aside, subject to the condition of payment of cost of Rs.3,000/-. However, the petitioner, who is the informant is directed to appear in the court below on 20th August, 2013 and deposit the cost and the court below either record his evidence on that day or if the court has any inconvenience regarding the recording the evidence on that date then to fix a date in presence of the petitioner or his counsel to its convenience on which the evidence of the petitioner is recorded. However, if the petitioner did not turn up on 20th August, 2013 or the date fixed by the court below for his evidence then the petitioner shall be liable for further cost of Rs.5,000/- and further the court below shall take coercive steps for evidence of the Investigating Officer and the doctor. The Superintendent of Police, Supaul is hereby directed to co-operate in producing the witnesses for the evidence on the date fixed by the trial court. The trial court is further directed that after recording the evidence of the Investigating Officer and the doctor shall expedite the trial for early disposal of the same preferably within six months from the date of receipt/production of a copy of this order. 8. With this observation and direction the petition is allowed. 9. Let this order be communicated to the court concerned as well as the Superintendent of Police, Supaul through FAX at the cost of the petitioner.