Birendra Kumar Sinha vs State of Jharkhand and another

R.R. Prasad

Heard learned counsel appearing for the petitioner and learned counsel appearing for the opposite party No. 2.

Learned counsel appearing for the petitioner submits that when the case was at the argument stage, an application was filed for summoning some of the witnesses as defence witness, who were the member of the raiding party but that was refused by the court below and hence, the petitioner challenged that order before this Court, vide Cr. Rev. No. 893 of 2009 whereby the Court after setting aside the order under which the court refused to issue summon to the witnesses to whom the petitioner wanted to examine as defence witness directed the court to issue summons to the witnesses, so that they be examined within a period of two months.

Pursuant to that, summons were issued but summons could not be served upon the persons and since two months passed, the court vide order dated 16.12.2010 refused to issue Dasti summons to the petitioner.

Being aggrieved with this order, the petitioner has challenged the said order.

Learned counsel appearing for the petitioner submits that the petitioner would be examining all the three witnesses within a period of six weeks, if Dasti summons are issued to him for its service upon the witnesses to whom the petitioner wants to examine as defence witness.

It was stated categorically that if the petitioner would fail to examine those three witnesses in spite of the issuance of Dosti summons, the court would be at liberty to close the case of the defence.

Learned counsel appearing for the opposite party No. 2 submits that the petitioner has been adopting delatory tactics to delay the disposal of the case.

In this regard, it was submitted that two years before the case had been fixed for argument and even the court had heard the argument in part, therefore, the impugned order never warrants to be interfered with.

Having heard learned counsel appearing for the parties, it does appear that when the prayer of the petitioner was refused for summoning some of the witnesses to whom the petitioner wanted to examine as defence witness, that order was challenged before this Court and this Court directed the learned trial court to issue summons of the witnesses which was done but it could not be served upon them, as a result of which, they could not be examined and thereupon an application was filed for issuance of Dosti summons but that prayer was rejected. Thus, it is quite evident that it is not on account of the fault of the petitioner, the witness could not be examined, rather they could not be examined for the reason that summons could not be served upon them.

Under the circumstances, prayer made on behalf of the petitioner for issuance of Dosti summons was quite justified still it was rejected and hence, the court committed illegality.

Accordingly that order dated 16.12.2010 is set aside.

Consequently the court is directed to issue Dosti summons to the persons to whom the petitioner is intending to examine as defence witnesses so that the petitioner may examine all those witnesses within six weeks from the date of issuance of the Dosti summons, failing which it would be open to the court to close the case of the defence.

Let a copy of this order be communicated to the court concerned through FAX at the cost of the petitioner.