Rajeshwar Pandey vs The State of Bihar

Narinder Singh Rao, J.—This application filed under sectiou 482 of the Code of Criminal Procedure for quashing the order dated 9.8.1939 passed by IInd Assistant Session Judge, Aurangabad in Sessions Trial No. 19/82 whereby he had ordered the resummoning of two prosecution witnesses as Court witnesses.

After hearing learned Counsel for the parties and going through the records, merit is found in this application.

Records speak over which there is no dispute that subsequent to the registration of a case u/s 395 of the Indian Penal Code at the instance of the informant on 23.6.1974, investigations were carried out, and after completion of the same charge sheet submitted against Rajeshwar Pandey, Petitioner, and few Ors. . During course of the trial, prosecution evidence was recorded. Then examination of the accused thereafter recorded, and since they had not desired to lead any evidence in their defence, even arguments of the parties heard. The case was then posted for delivering judgment on 9.8.1989. It was on that date that the trial Court had thought in terms of summoning P.Ws. 5 and 8 for their examination as Court witnesses. That was not legally permissible. The defence counsel had, during the course of arguments criticised the prosecution case, including the evidence of P.Ws. 5 and 8. It appears that to fill in the lacuna in the prosecution case, the trial Court had ordered for examination of P.Ws. 5 and 8 as Court witnesses. In Rajendra Prasad Singh alias Khirn Singh and Ors. v. Ramuchit Singh alias Chhtan Singh 1984 P.L.J.R. 936 court''s attempts to overcome arguments of defence by seeking to examine a material witness on the date fixed for delivering judgment has been adversely commented upon while observing that power u/s 311 of the Code of Criminal Procedure cannot be used for filling up the lacuna in the prosecution case. Of course such powers can be exercised if the Court while hearing the case deems fit and proper to examine some witnesses in the ends of justice, to appreciate, the prosecution case and to clerify doubts in his mind.

For reasons stated above, this petition is allowed. The impughed order dated 9.8.1989 passed by the Trial Court for examining P.Ws. 5 and 8 as Court witnesses is hereby quashed.

As inordinate delay in finally concluding the case has already taken place the trial Court is directed to finally dispose of the case at the earliest on the basis of material already brought on records. Lower Court records are ordered to be returned forthwith.