CHIKKEGOWDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition by the accused is directed against the order dated 13.3.81 passed by the Judicial Magistrate First Class, Nagamangala, in C. C. No. 328 of 1978 allowing the application filed by the prosecution under S. 311 Crl.P.C.

(2.) The charges against the accused are that they trespassed into the land belonging to P. W.1 with the intention of causing mischief and as such committed mischief after breaking open the door of the pump house. As the accused did not plead guilty, the prosecution examined several witnesses in support of its case. On 12.2.81 the investigating officer was examined in chief and the cross-examination was deferred to 13.2.81 at the request of the accused. On 13.2.81 the learned Assistant Public Prosecutor, was on leave. After cross examination of the investigation officer P.W. 6 on 13.2.81, the trial court passed an order stating that the prosecution case was closed. Thereafter, it recorded the statement of the accused under S.313 Cr. P. C. On 5.3.81 the prosecution filed an application under S.311 Cr.P.C. requesting the court to summon (i) the endorsement of the P.L.D. Bank. Nagamangala, to show the document of loan for well and I. P.set and the loan ledger relating to P. W. 1, (ii) R.T.C. extracts of land Sy. No. 33/2 of Thuppadaredu village and (iii) ledger details of R.R. No. M. P. 225 of K.E.B., on the ground that the said documents are necessary and desirable for the purpose of the trial. The said application was resisted by the accused on the ground that the said petition was not maintainable, thai the trial was concluded and that, therefore, the court cannot pass an order under S 311 Cr.P.C. The learned Magistrate after hearing both the parties allowed the application of the prosecution. Aggrieved by the said order, the accused preferred the present petition challenging its legality and correctness.

(3.) As could be made out from the memorandum, of the petition, the petitioners have contended that while passing the impugned order, the trial court has failed to consider how the documents sought to be summoned are material and why those persons were not examined before the closure of the case. According in the petitioners, allowing the said application would amount to enabling the prosecution to patch up the loop-holdes in the prosecution, as the prosecution had kept quiet without taking any steps till the case was set down lor arguments. They further contended that the learned Magistrate has failed to notice that the party desirous of proving the documents had not taken all reasonable means to produce the same at the earliest point of time and the learned Magistrate has not exercised the discretion in the proper way. He has also not considered as to how in the interest of justice these documents are essential for the just decision of the case. But, however, the learned High Court Government Pleader contended that this is a case wherein the learned Magistrate has rightly exercised his powers under S. 311 Cr.P.C. He submitted that the documents summoned are just and necessary for the disposal of the case, as some of the documents would show that he (P. W. 1) erected a pump-set in his land, that it, was purchased by him on a loan sanctioned by the P.L.D. Bank, Nagamangala, and that he is paying electricity charges to the K. E. B. etc., He further submitted that the documents sought to be summoned are official documents and there was no lacuna on the part of the prosecution to produce them at the earliest point of time. He submitted that on the day on which P. W. 16 the investigating officer was examined, the Assistant Public Prosecutor was on have and the trial court thinking that the prosecution has closed its case proceeded to examine the accused under S.313 Cr.P.C.