BAL KRISHNA Vs. DISTRICT SESSIONS JUDGE JALAUN

JUDGEMENT

(1.) N. L. Ganguly, J. The application by accused-applicant under Section 482 Cr. P. C. for quashing the order dated 19. 3. 91 passed in S. T No. 110 of 1990, State v. Balkishan by the Sessions Judge, Jalaun at Orai has been filed. The impugned order has been passed by the learned Sessions Judge on the objection of the accused- applicant that no more time be granted to the prosecution for examining the prosecution witnesses. The accused-ap plicant is at present confined in Jail for last one year. The prosecution case is going on and on the last two dates, the prosecution could not examine two witnesses in Sessions Trial. No doubt earlier opportunities were given but the prosecution failed to produce the said witnesses. On the last occasion, two witnesses were to be examined by the prosecution and only one witness was produced another witness was not summoned or produced before the Court. The learned Judge observed that only one witness was examined and it shall be deemed that prosecution is not interested in producing the remaining witnesses. It shall be deemed that the prosecution evidence is closed. On the next occasion also, the prosecution witnesses was not produced before the Court. It was observed in the order of learned Sessions Judge that: ". . . . . . . inspite of giving another date for recording statement of the accused, parties were told by passing express order that if any witness who remains present before recording statement of accused may be examined. The Court felt short of time due to doing other cases on 25. 2. 1991 and the case was listed for evidence on 5. 3. 1991. It was the same noticing. It was apparent from my order dated 14. 2. 91 under which last steps for procuring presence of witnesses was also ordered to be adopted. Statement u/s 313 Cr. P. C. has still not been recorded. Both the witnesses are in attendance. "

(2.) THE learned counsel urged 'that use of word that the prosecution evidence shall deem to have been closed' means that the prosecution evidence had already been closed and the order dated 25. 1. 91 cannot permit the Sessions Judge to allow prosecution to examine the other witnesses of prosecution in the Sessions Trails. I am afraid this submis sion is not correct. THE learned Sessions Judge in his order categorically stated that in his order he had made it clear that further time shall not be granted and if on the date of recording the statement of the accused persons, the witnesses are in attendance, their statement shall be recorded. In my opinion, the learned Sessions Judge had observed earlier that prosecution evidence shall be taken to be closed in the earlier stages of the proceedings was merely caution given by the learned Judge to the prosecution agency so that they may produce the evidence on the next date that was not really an order of closing the prosecution evidence. After examining the entire order of the learned Judge, I am of the view that there was no error in passing of the order that the prosecution witnesses be permitted to be examined before recording the statement of accused persons under Sec. 313 Cr. P. C. THE learned counsel for the applicant cited one Authority Siva Anjaiah v. State of Andhra Pradesh, 1991 Cr. LJ, Page 1594. THE argument is that in the said case the learned court observed as under: "the learned Magistrate having forfeited the right of the prosecution to examine further wit nesses and posted the case for the examination of the accused, acted illegally and without jurisdiction in setting aside that order. THE order made by the Magistrate could have been set aside only in appeal or revision as the case may be. If he thought it necessary to examine further witnesses he could have exercised his powers under Section 540 Cr. P. C. but he had no jurisdiction to set aside the order upon a petition by the State. THE order dated 7. 7. 1990, is therefore, set aside. "

(3.) WITH these observations, the application is dismissed. Let a copy of this order be given to the learned counsel today on payment of usual charges. Appeal dispossed. .