Uday Bhanu Singh vs The State of Bihar and Others

M.L. Visa, J.—Heard. The petitioner has filed this application for quashing the order dated 18.12.2003 passed by the learned Sessions Judge, Munger, in Cr. Revision No. 459 of 2003, allowing the revision preferred by opposite party Nos. 2 to 7 and setting aside the order dated 22.8.2003 passed by Shri R. Malviya, Judicial Magistrate, 2nd Class, Munger, in G.R. case No. 91/99 arising out of Dharhara PS case No. 7/99 by which he allowed the petition dated 31.7.2003 filed on behalf of the prosecution u/s 311 of the Code of Criminal Procedure (in short, Cr.P.C. ) and directed the prosecution to produce its witnesses within three days on payment of cost of Rs. 200/- to defence.

The brief facts of the case are that the petitioner lodged a written report addressed to Officer-in-charge of Dharhara PS on 21.1.99 against opposite party Nos. 2 to 7 for the allegation of assault and damage to the boundary and plants of guava and mango of his courtyard. On the basis of this report, Dharhara PS Case No. 7/99 was registered. The police after investigation submitted charge sheet and learned CJM by his order dated 11.10.99 took cognizance of the offences under sections 341, 323, 337 and 427 / 34 of the Indian Penal Code and summons were issued against opposite party Nos. 2 to 7 and case was transferred to the Court of learned Judicial Magistrate, 2nd class for trial. The accusation of offence was explained to opposite party Nos. 2 to 7 on 24. 3. 2000 and trial commenced and evidence of prosecution was closed on 7.6.2002 and on 10.6.2002 statements of opposite party Nos. 2 to 7 were recorded u/s 313 Cr.P.C. Thereafter the petitioner filed a petition u/s 311 Cr.P.C. to recall PW-2 for his cross examination but his prayer was rejected by the learned Magistrate and then the petitioner preferred Cr. Revision No. 28/03 against this order which was allowed by the learned Sessions Judge observing that the prosecution should produce PW-2 within three days failing which the court below will pass order in accordance with law. PW-2 was produced before the court below and was examined and was discharged but on the same day the prosecution filed a petition with attendance of two witnesses and made prayer for examination of those two witnesses which was objected to by the opposite party Nos. 2 to 7 but the learned Magistrate allowed the prayer of the petitioner. Opposite party Nos. 2 to 7 preferred Cr. Revision No. 459/2003 against this order which was allowed and order dated 22.8.2003 of the learned Magistrate allowing the prayer of petitioner for examining two witnesses was set aside. Against this order the petitioner who is informant of Dharhara PS Case No. 7/99 has come up before this Court.

Learned counsel appearing on behalf of the petitioner has submitted that once order was passed in Cr. Revision No. 28/03 allowing the prayer of petitioner for recalling a witness i.e. PW-2 for his cross examination, the prosecution case was reopened and prosecution was then in its right to produce more witnesses for their examination. I find no force in this argument because case of prosecution was closed and the statements of accused persons u/s 313 Cr.P.C. were recorded and thereafter petitioner filed a petition u/s 311 Cr.P.C. for recall of PW-2 for his further cross examination which, as stated above, was rejected by the Court below but in revision his prayer was allowed with a condition that prosecution should produce the aforesaid witness within three days to be fixed continuously and in case, during this period of three days PW was not produced the Court below will pass order in accordance with law. By that time, petitioner had not made prayer that besides PW-2 he was to examine two more witnesses in the case. His prayer for recalling PW-2 for his further cross examination was allowed in Cr. Revision No. 28/2003 and when PW-2 was cross examined he produced more witnesses for their examination. The purpose of section 311 Cr.P.C. is not to enable one party or the other to fill up the gap in its evidence. I, therefore, find that the learned Sessions Judge has rightly held that while deciding Cr. Revision No. 28/03 the Court below was directed to give chance to the prosecution for producing PW-2 only for the purpose of cross examination and it did not pass any order for giving further chance to the prosecution for producing other witnesses because admittedly, till that time, there was no such prayer on behalf of the prosecution. I, therefore, find no merit in this application which stands dismissed.