SAKTIPADA DOLUI Vs. MADHABI DOLUI

JUDGEMENT

(1.) This revisional application is directed against the order dated 13th January, 1997 passed by the learned trial Magistrate in C.R.No. 37 of 1985. By this order the learned Magistrate allowed a petition of the complainant under Section 246(6) of the Cr. P.C. to examine his remaining witness when the evidence of the prosecution had already been over and the case was fixed for examining the accused persons under Section 313 of the Cr. P.C. The defence filed a petition opposing the said petition of the complainant under Section 246 of the Cr. P.C. but the learned Magistrate did not accept the defence contention and allowed the complainant's petition and fixed a date for his further evidence.

(2.) Being aggrieved by that order of the learned Magistrate the defence has preferred the present revisional application challenging the said order as erroneous, illegal and unsustainable and praying for an order not only setting aside the impugned order of the learned Court below but also quashing the entire criminal proceeding in question.

(3.) Mr. Hussain, learned Advocate appearing on behalf of the petitioner in this revisional application, contends that there has been inordinate delay in the matter of completion of trial of this case, it having commenced in 1985 while the impugned order was passed in 1997 and in support of his contention he has referred to a decision reported in 1991 Cri LJ 922. In this reported decision, their Lordships of the Apex Court have taken the view that Section 540 of the old Criminal Procedure Code which corresponds to Section 311 of the new Code, should not be invoked by the Court to fill up the lacuna in the prosecution case, because it is not the duty of the Court to make good the omission of the prosecution and unless the Court is satisfied that in the interest of justice it is necessary to invoke the said extraordinary power, it will not embark upon such an exercise. But on a careful perusals of the facts and circumstances of the present case and the nature of the impugned order, I find that this ruling has no manner of application to them. Here the impugned order was not passed by the Court under Section 311 of the Cr. P.C. The Court passed the order allowing the complainant's petition for examination of one remaining witness under Section 246(6) of the Cr. P.C. and this decision of the Apex Court is of no avail here.