Heard Sri Manish Kumar Pandey, learned counsel for the applicant and learned AGA for the State and perused the record.
By means of the present 482 Cr.P.C. application, the applicant has prayed for quashing the order dated 8.6.2012 passed by the learned Additional Chief Judicial Magistrate, Nagina, Bijnore by which the application under Section 311 Cr.P.C. filed by the prosecution has been allowed and the prosecution has been allowed to produce its witnesses in criminal case No. 202 of 1991, under Sections 392, 411 I.P.C., Police Station Nagina, District Bijnor.
The brief facts of the case as emerges out from the record is that the alleged incident is said to have taken place on 30.7.1990 for which a FIR was lodged by opp. Party No.2, Naresh Pal, posted as In-charge Inspector Police Station Nagina, District Bijnor for the offence under Sections 392, 411 I.P.C. and 25 Arms Act, which was registered as case crime No 360 of 1990, for which a charge sheet was submitted against the applicant on 18.11.1990. The learned Magistrate took the cognizance of the offence on 7.11.1991 and the applicant was summoned to face the trial. The applicant appeared before the Court below after 6 years, i.e. 28.1.1997 since when the cognizance was taken by the learned Magistrate. The case was fixed for prosecution evidence on 23.5.1997, inadvertently no charges were framed against the applicant due to some mistake which was detected by the Court on 7.2.2008. On 3.3.2008 the Court below framed charges against the applicant and on 19.11.2008, date was fixed for prosecution evidence by the Court below as the prosecution witnesses did not appear before the Court below. On 18.9.2008 the Court below issued non- bailable warrants against the witnesses for securing their presence before it, but the witnesses did not appear before the trial Court. On 3.10.2008, the Court afforded last opportunity to the prosecution to produce the evidence through its witnesses. On 22.10.2008, no prosecution witnesses were produced when the next date was fixed by the trial Court. On 19.11.2008, an application was moved by the prosecution for adjournment, on which a detailed order was passed by the Magistrate on 25.11.2008 but the learned Magistrate observed that last opportunity has been afforded to the prosecution for producing the witnesses and the case has become old and on the said date also no witnesses had appeared and it appears that the prosecution is not interested in producing its witnesses, hence, the Court directed that the case be fixed for rest of the prosecution evidence/recording the statement under Section 313 Cr.P.C. On 25.11.2008, the trial Court again found that the witnesses have not been produced by the prosecution and the evidence of the prosecution has been closed and the application dated 19.11.2008 for adjournment had already been rejected by the trial Court on 19.11.2008, hence, it closed the prosecution evidence and fixed the case for recording the statement under Section 313 Cr.PC. On 5.12.2008 the statement of the accused applicant was recorded by the trial Court under Section 313 Cr.P.C. and the case was fixed for argument . It further transpires that regular dates were being fixed for argument such as 15.1.2008, 1.2.2008, 7.2.2008, 16.2.2008, 10.12.2008, 15.1.2009,4.2.2009, 5.2.2009, 20.3.2009, 31.3.2009, 22.4.2009 24.5.2009, 5.6.2009 but no arguments were made and on 5.6.2009 an application was moved by the prosecution as paper No.D-20 under Section 311 Cr.P.C. to the effect that the prosecution witnesses be summoned so that the trial may not be decided for want of evidence.
The learned Magistrate by the impugned order allowed the said application of the prosecution by passing the impugned order dated 8.6.2012 and fixed 23.7.2012 for prosecution evidence, hence, the present 482 Cr.P.C. application before this Court for quashing the impugned order passed by the learned Magistrate.
It has been contended by the learned counsel for the applicant that from perusal of the order sheet of the present case which has been annexed with the present application under Section 482 Cr.P.C., it is apparent that for last several years the prosecution has failed to produce its witnesses before the trial Court and after giving several opportunities to it, the trial Court under the compelling circumstances has closed the prosecution evidence as is evident from the order dated 25.11.2008 which found mention in the order sheet of the trial Court annexed with the present application and after recording the statement under Section 313 Cr.P.C. on 5.12.2008 of the accused applicant, the application dated 5.6.2009 moved by the prosecution on the basis of which the impugned order has been passed by the trial Court giving opportunity again to the prosecution to produce its witnesses, is illegal in the eyes of law as the learned Magistrate has no power to recall/review its order dated 25.11.2008 by which he has closed the prosecution evidence and fixed the case for recording statement under Section 313 Cr.P.C. which was recorded by the trial Court and thereafter several dates were fixed for argument of the case. He has placed reliance of the judgment of the Apex Court reported in 1976 STPL(LE) 8394 SC, AIR 1977 SC 2432 Bindeshwari Prasad Singh Vs. Kali Singh, in which it has been held by the Apex Court that there is absolutely no provision in the Code of Criminal Procedure of 1908 empowering a Magistrate to review or recall an order passed by him. Learned counsel has also placed reliance of a judgment of High Court of Bihar reported in 2000-LAWS (PAT) 1-88, 2000 CRLJ-0-3705, 2000 Pat LJR-3-220 Keshav Choudhary Vs. State of Bihar. He submits that once the trial Court has closed the prosecution case and the statement of accused persons under Section 313 Cr.P.C. was recorded, it cannot reopen the same. The trial Court reopen the same which will amount to review his earlier order dated 25.11.2008. The recourse to Section 311 Cr.P.C. cannot be taken by the trial Court under the facts and circumstances of the case and has contended that the impugned order be quashed.
He has also placed reliance on another judgment of High Court of Patna reported in 2000 Law Suit (PATS) 70, Keshav Choudhary Vs. State of Bihar and has drawn the attention of this Court in paragraphs 6 and 7 of the said judgment which are quoted here-in-below:
"6. It, thus, becomes clear that this provision under S. 311 of the Code has been made for the just decision of the case. A just decision in a case will mean just decision both from the point of view of the prosecution as well as the accused. Section 311 of the Code does not give a long rope to the prosecution to make it a tool for the harassment of the accused to be used or abused in any manner that they like. In the present case it, however, appears that the charge sheet in this case was submitted on 15.6.1993 and thereafter 24.6.1993, 25.6.1993, 26.6.1993 and 28.6.1993 were the dates fixed for the examination of the witnesses. In spite of so many dates not a single witness turned up. By the orders dated 3.2.1994, 11.1.1995 and 7.3.1995 bailable as also non-bailable warrants of arrest were issued against the witnesses. The warrants of arrest were issued through the Superintendent of Police , Samastipur but in spite of these attempts made by the Court not a single witness turned up for his examination for more than two years. From the impugned order it appears that lastly only a formal witness was examined to prove the FIR (Ext. 1). When in spite of non-bailable warrants of arrest not, a single witness could be produced before the learned trial Court it was left with no alternative but to close the case of the prosecution on 31.5.1995 and it proceeded to record the statements of the accused persons under S. 313 of the Code. Under the aforesaid circumstances it is clear that the action of the prosecution as also of the police machinery can be said to be highly negligent and the prosecution singularly failed to produce any witness in spite of the non-bailable warrants of arrest issued against them. Under the aforesaid circumstances I do not think that the provision of S. 311 of the Code could be attracted. It is not one of those cases in which some important witnesses on the question of fact could not be examined for any reason whatsoever. In the present case except for a formal witnesses not a single witness could be examined. It is only after the examination of the accused under S. 313 of the Code that the prosecution has come forward with a prayer to examine prosecution witnesses after waking up from the deep slumber. It is well settled that the jurisdiction conferred under S. 311 of the Code cannot be used for filling up a lacuna in the prosecution case. The power under S. 311 of the Code can only be exercised if the Court while hearing the case deems fit and proper to examine some witnesses for the ends of justice, to appreciate the prosecution case and to clarify any doubt in his mind. This power cannot be exercised with the aid of the prosecutor this view finds support from the case of Rajendra Prasad Singh alias Khiru Singh v. Ramuchit Singh alias Chhotak Singh, 1984 BBCJ 657.
7.Another thing is to be noted in this connection that by the impugned order the learned Addl. Sessions Judge has recalled his earlier order closing the case of the prosecution. It is will settled that a subordinate Courts have no jurisdiction to do so as held in the case of Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC2432 1978 Cri LJ187). Hence properly speaking the learned Additional Sessions Judge could not have recalled his earlier order closing the case of the prosecution and that also under S. 311 of the Code. As noted above the provision of this section are not attracted under the facts and circumstances of the case. "
Learned counsel for the applicant has further placed reliance on the judgment of the Apex Court reported in 1991 STPL(LE) 16443SC, AIR 1991SC 1346, Mohanlal Shamji Soni Vs. Union of India of. He has further drawn the attention of this Court towards the judgment of Madras High Court reported in 1950 Law Suit (Mad) 348.
He further placed reliance upon the judgment of Apex Court reported in 1967 STPL(LE)3872SC, AIR 1968SC178, Jamatraj Kewalji Govani Vs. State of Maharashtra.
Learned AGA on the other hand has vehemently opposed the prayer for quashing the impugned order passed by the trial Court and has submitted that though the cognizance of the case was taken 20 years ago but the applicant absconded and did not appear before the trial Court for the last 6 years and he appeared before the trial Court on 28.1.1997. He further submits that on 7.2.2008 the trial Court found that inadvertently by mistake no charges were framed against the applicant and after detecting the same, the charges were framed against the applicant on 3.3.2008. He further submits that no doubt prosecution has not been able to produce the prosecution witnesses but the conduct of the applicant should also not said to be above board as he himself has come up before the Court below after 6 years and he was conscious of the fact that no charges have been framed against him by the trial Court inadvertently by mistake and he did not even point out to the court below about the said fact and it was the trial Court which detected the mistake on 7.2.2008 and framed charges against the applicants on 3.3.2008. He further submits that the facts and circumstances of the case are such that both the prosecution as well as applicant are responsible for the delay of the trial for so many years and prayed before the Court that the prosecution on 5.6.2009 taking seriousness of the matter realized the fact that the trial should not be decided for want of evidence, hence, it moved an application on 5.6.2009 as paper No.D-20 under Section 313 Cr.P.C. before the trial Court after going to the facts and circumstances of the case and for proper decision of the case, had rightly allowed the application on 8.6.2012 as in the present case it is not a case in which the prosecution had led some evidence and could not produce rest of the evidence , hence, the order of the trial Court is in accordance with law and no interference is called for by this Court in the present 482 Cr.P.C. application. He further points out that the Case Laws cited by the learned counsel for the applicant's in support of his contention are distinguishable from the facts and circumstances of the present case and moreover the judgment of High of Patna has only persuasive value and it does not lay down the law which is binding upon this Court.
Considered the submissions advanced by the learned counsel for the parties. As is evident from the admitted facts which have been discussed above, it is apparent that in the present case the prosecution witnesses who appears to be the police personnel had not been summoned by the trial Court by taking proper recourse which was available under law for securing their presence before the trial Court which was not exercised by the trial Court and there appears to be casual approach by the parties as well as by the Court below in securing the presence of the prosecution witnesses. The trial Court once has closed the prosecution evidence on 25.11.2008 after giving several opportunities to the prosecution for producing its witnesses, as is evident from the order sheet as well as other material on record, the prosecution did not produce the prosecution witnesses to prove the case against the applicant and thereafter after recording the statement under Section 313 Cr.P.C. of the accused applicant on 5.12.2008 several dates were fixed by the trial Court for arguments and the same was not advanced before the trial Court and suddenly on 5.6.2009 an application was moved by he prosecution as paper No.D20 under Section 311 Cr.P.C. for summoning the prosecution witnesses as the trial may not be decided for want of the evidence on which the trial Court had passed the impugned order allowing the same and had again provided opportunity to the prosecution to produce its witnesses. It is true that the Magistrate has no power to review or to recall its order as has been held by the Apex Court in its catena of decisions, some of which have been cited by the learned counsel for he applicant as has been discussed above but the provision under Section 311 Cr.P.C. is for the powers of the Court which is to be exercised by it at any stage of inquiry or trial for a just decision of a case. The Apex Court has also held that the powers under Section 311 Cr.P.C. cannot be restricted to the Court for arriving a just decision of a case. In such a situation, no doubt the incident of the present case has become old but the Court cannot allow that trial be abruptly ended or concluded for want of evidence and giving a liberty to the accused for such laches on the part of the prosecution. Though the learned Magistrate has committed gross illegality in reviewing its earlier order dated 25.11.2008 by which he had closed the prosecution evidence and passed the impugned order allowing the application dated 5.6.2009, paper No.D-20 under Section 311 Cr.P.C. of the prosecution again giving an opportunity to produce its witnesses, hence, the said order of the Magistrate cannot sustained in the eyes of law, hence, the impugned order dated 8.6.2012 passed by the learned Magistrate is hereby quashed.
However, considering the facts and circumstances of the present case, one last opportunity is provided to the prosecution to produce its witnesses before the trial Court and the trial Court is directed to secure the presence of the prosecution witnesses before it by taking all measures permissible under law for just decision of the case and the trial may be brought to its logical end in accordance with law and conclude the same within four months from the date of production of a certified copy of this order. If the prosecution witnesses inspite of it do not turn up, the trial Court shall pass appropriate orders in accordance with law in the case.
With the aforesaid observation, the present 482 Cr.P. C. application stands disposed of.
Order Date :-9.11.2012 NS