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2017 DIGILAW 1603 (JHR)

Sandhya Das @ Sandhya Das v. State of Jharkhand

2017-09-05

RONGON MUKHOPADHYAY

body2017
JUDGMENT : 1. Heard the parties. 2. In this application, the petitioners have prayed for quashing the order dated 01.12.2016 passed in Cr. Revision No.27 of 2016 by learned Principal District & Sessions Judge, Pakur whereby and where under the order dated 29.09.2016 passed by learned Chief Judicial Magistrate, Pakur in connection with G.R. Case No.335 of 2007 arising out of Pakur (T) P.S. Case No.141 of 2007, rejecting the application preferred by the petitioners under Section 315 Cr.P.C., has been affirmed. 3. It has been stated by the learned senior counsel for the petitioners that an application preferred by the petitioners for getting them examined under Section 315 Cr.P.C. has not been taken into consideration by the learned revisional court on the presumption that no such application has been filed by the petitioners. It has further been stated that the petitioners did not delay the procedure, since the petitioners were precluded from appearing before the learned trial court in absence of the bailers and once this Court had modified the condition for grant of bail, the petitioners had filed an application under Section 315 Cr.P.C. which, however, was rejected. It has further been submitted that the case has been fixed for argument and, therefore, if a single opportunity is given, the petitioners shall examine themselves and shall take all possible steps for examination of the witnesses. 4. Learned senior counsel for the O.P. No.2 as well as learned Addl. P.P. have opposed the prayer made by the petitioners and have stated that the procedural safeguards, as enumerated under Section 315 Cr.P.C. cannot be examined and the learned trial court as well as learned revisional court had given proper reasoning, while refusing to entertain the application preferred by the petitioners under Section 315 Cr.P.C. It has been stated that once the evidence has been closed, since the petitioners have not filed an application under Section 315 Cr.P.C. for getting themselves examined for more than five years, they are precluded from appearing before the learned trial court, which fact has rightly been appreciated by both the courts below, while refusing to entertain the application filed by the petitioners under Section 315 Cr.P.C. 5. The case, which was instituted against the petitioners is of the year 2007 in which the petitioners were granted bail and since certain conditions imposed upon the petitioners, could not be fulfilled by them, an application was preferred by the petitioners for modification of the order granting bail, which was refused. On refusal, the petitioners moved before this Court in Cr. M.P. No.2586 of 2015 and this Court vide order dated 14.07.2016 had disposed of the said application, by setting aside the impugned order dated 23.05.2013 with a direction to the learned court below to take necessary security from the petitioners. 6. Non fulfillment of the terms and conditions imposed, while granting bail, had led to a considerable delay in the progress of the trial and the same has not been taken into consideration in the order dated 14.07.2016 itself to the effect that in absence of the bailers, as has been directed by the learned court below, the petitioners were precluded from appearing before the learned trial court on the date fixed leading to issuance of various processes for securing their attendance. 7. The order dated 14.07.2016, thus, goes to show that there had been no intention on the part of the petitioners to delay the trial. In the said order, the learned trial court was directed to conclude the trial within a period of one month. Both the courts below had taken into consideration the fact that the statement under Section 313 Cr.P.C. was recorded on 31.03.2011 and after five years, the defence had filed an application under Section 315 Cr.P.C., rejecting the same, but none of the courts below have taken into consideration the fact, which has been noted in the earlier part of the order with respect to delay in conclusion of the trial. The revisional court has further committed an error by stating that no petition has been filed by any of the accused persons to get themselves examined as witness. It is an admitted fact that individual petitions had not been filed by the petitioners but the observation made by the learned revisional court is bad in law as the petition indeed was filed by all the accused persons in getting themselves examined under Section 315 Cr.P.C. 8. It is an admitted fact that individual petitions had not been filed by the petitioners but the observation made by the learned revisional court is bad in law as the petition indeed was filed by all the accused persons in getting themselves examined under Section 315 Cr.P.C. 8. That facts situation noted above, do suggest that the petitioners had reasonably explained the delay and they cannot be saddled with the observation that it was on account of the petitioners, the trial has been delayed. 9. Moreover, if the application under Section 315 Cr.P.C. on consideration of the factual aspect of the case, is not allowed, the same shall extinguish the valuable right, which had occurred to the petitioners, when the application under Section 315 Cr.P.C. was filed. 10. In view of the discussions made hereinabove, while setting aside the order dated 29.09.2016 passed by learned C.J.M., Pakur, in connection with Pakur (T) P.S. Case No.141 of 2007 as also the order dated 01.12.2016 passed in Cr. Revision No.27 of 2016 by learned Principal District & Sessions Judge, Pakur, the learned trial court is directed to examine the petitioners in terms of Section 315 Cr.P.C. within a period of one week from the date of receipt of a copy of this order. 11. This application stands disposed of with the aforesaid observations and directions. 12. Let a copy of this order be communicated through Fax at the cost to be deposited by the petitioners. Petition dismissed.