BIMAL KRUSHNA TRIPATHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner who is an accused in Nabarangpur P.S.Case No. 137 of 1996 corresponding to G.R.Case No. 395 of 1996 pending before the learned Chief Judicial Magistrate, Nabarangpur for the offences punishable under Sections 420, 468 and 472 of the Indian Penal Code has filed this petition under Section 482, Cr.P.C. for quashing the impugned order dated 3.11.2004 passed by the learned Chief Judicial Magistrate, Nabarangpur under Section 311, Cr.P.C. on the date of delivery of judgment, summoning the material witnesses i.e. the then Employment Exchange Officer and the then I.I.C., Nabarangpur P.S. and calling for the required primary document allegedly to fill up the lacuna of the prosecution case.

(2.) THE brief facts of the case are that the Establishment Officer, Collectorate, Nabarangpur lodged a First Information Report at Nabarangpur P.S. which was treated as Nabarangpur P.S. Case No. 137 of 1996, corresponding to G.R.Case No. 395 of 1996 in the Court of learned S.D.J.M., Nabarangpur for the offences punishable under Sections 420/468/471, IPC. After conclusion of the investigation the Police filed a charge -sheet against the petitioner under Section 173(2), Cr.P.C. Consequently the trial was conducted against the petitioner in the Court of the Chief Judicial Magistrate, Nabarangpur in which the prosecution examined 12 witnesses and marked several documents as exhibits. The prosecution evidence was closed on 8.6.2004 on the basis of memo filed by the learned A.P.P. Thereafter on 9.6.2004 the petitioner was examined under Section 313, Cr.P.C. on 23.6.2004 no evidence was produced by the defence and as such, the case was fixed to 12.7.2004 for argument. Thereafter the case was adjourned on the request of the prosecution and finally it was heard on 7.10.2004. The learned Chief Judicial Magistrate fixed 3.11.2004 for delivery of judgment. But instead of delivering the judgment he passed the orders to summon two witnesses and called for the required primary document. The order passed by him is re -produced as under :

(3.) IT is well settled law and there is a catena of decisions of Hon'ble Apex Court that the Court should not permit lacuna in prosecution evidence to be filled up,