State vs Randhir Singh and ors.

S.S. Sodhi, J. (Oral)

The challenge here is to the impugned order of the trial Magistrate of March 21. 1986 closing the complainant''s evidence.

A perusal of the order shows that on January 21, 1986 two prosecaution witnesses Yashwant Singh and Ashok Kumar were not present despite service. Bailable warrants were accordingly issued to secure their presence for the next date of hearing which was February 28 1986. On this date, i.e. February 28, 1986, Yashwant Singh was present and his statement was recorded but the other witness Ashok Kumar was again not present. It was accordingly ordered that his presence be secured by the issuance of the bailable warrants for the next date of hearing i.e. March 21, 1986. In the order of February 28, 1986, it was also mentioned : "Last opportunity is granted." On March 21, 1986, when no witness for prosecution was present, the trial Magistrate proceeded to close the prosecution evidence saying : Today is the last opportunity".

It will be seen that here a witness had been summoned and actually served but despite service he had falled to appear in Court and consequently bailable warrants were ordered to be issued to secure his presence in Court. If in these circumstances the witness does not appear on the date fixed it clearly provides no occasion for the Court to close the prosecution evidence. The impugned order of the trial Magistrate of March 21, 1986 is accordingly hereby set aside, and the case is sent back for further proceedings in accordance with law.

This revision petition is thus hereby accepted.

Parties are directed appear before the trial Court on February 22, 1988.