Ajay Narayan Das and Upendra Narayan Das vs Smt. Asha Devi

Rakesh Ranjan Prasad, J.—Heard learned counsel appearing for the petitioners and leaned counsel appearing for the opposite party no. 2. Learned counsel appearing for the petitioners submits that the complainant was given ample opportunities to adduce witnesses before charge but in spite of 19 adjournments being given when the complainant did not produce witnesses to be examined before charge, the case was closed. After two months, an application was filed u/s 311 of the Code of Criminal Procedure for allowing her to examine the witnesses before charge. That prayer was allowed and thereby the court committed illegality as by allowing the prayer the court virtually has review its earlier order which power the court does not have and therefore, the impugned order is fit to be set aside.

Learned counsel in support of his submission has referred to a decision rendered in a case of Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, .

Mr. Chaturvedi, learned counsel appearing for the opposite party no. 2 submits that when the court has allowed the prayer made in an application filed u/s 311 of the Code of Criminal Procedure after having coming to conclusion that that examination of the witnesses is necessary for ends of justice, any such order passed by the court would not amount reviewing its earlier order by which the case had been closed.

In the context of the submission advanced on behalf of the parties, one needs to take notice of the provision as contained in Section 311 of the Code of Criminal Procedure which reads as follows:

Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the best decision of the case.

From perusal of the aforesaid provision, it does appear that the court does have ample power to recall all witnesses for examination, re-examination if it appears to the court that their evidences are essential for just decision of the case.

Here in the instant case, it appears that the case of the complainant was closed when the complainant in spite of ample opportunity being given did not produce the witnesses to be examined before charge. However, after closure of the case, an application was filed for allowing the complainant to produce the witnesses to be examined before charge. The court having considered that their evidences are necessary for the just decision of the case did allow that prayer and therefore, I do not find any illegality with the order dated 22.3.2011 passed in Complaint Case no. 333 of 2005.

Accordingly, I do not find any merit in this application. Hence, it is dismissed. It is made clear that the complainant would examine all her witnesses which she intends to examine before charge within one month from the date fixed in this case.