Radha Shukla and Another vs The State of Bihar and Another

I.P. Singh, J.—This application is directed against, the order dated 28.11.2002 passed in Sessions Trial No. 683 of 1997, arising out of Complaint Case No. 1 of 1986 by 8th Additional Sessions Judge, Patna whereby he has allowed the prosecution to examine Rai Ramesh Prasad as prosecution witness u/s 311 of the Code of Criminal Procedure.

Learned Counsel for the Petitioners has submitted that Rai Ramesh Prasad was neither named in the complaint petition as a witness nor he was examined in course of enquiry u/s 202, Code of Criminal Procedure despite several pportunities were given to the complaint. The.only motive of the prosecution is to fill up the lacuna in the case. He has further submitted that the court below has passed the order impugned without applying its judicial mind, as such, the order impugned is not sustainable in the eye of law and it is fit to be quashed.

Perused the order impugned. It appears that Rai Ramesh Prasad seems to be a material witness as he was present at the time when his dying declaration was made by the deceased. As such, his examination is essential for the just decision of the case. Accordingly, order dated 28.11.2002 does not require any interference at this stage. The learned court below is directed to examine Rai Ramesh Prasad within a month. It is made clear that no further time be granted. Accordingly, this application stands disposed of.