FAQUIR CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner who is facing trial in a case under sections 420/467/471/120. B of the Indian Penal Code since the year 1973 impugners the order of the trial Magistrate dated 5th July, 1986 where by be bas allowed the prosecution to lead additional evidence by way of recalling Shri Bhagirath who bad actually lodged the complaint in this ease with the police. This complaint was lodged or the case was registered by the police as far back as on 8th August, 1966. THE reason for allowing this concession to the prosecution, as stated in the order, is that after summoning of the accused-petitioner under section 351, Criminal Procedure Code, in the year, 1973, (as in force at that time) the prosecution had not summoned its witnesses afresh to depose against the petitioner. THE stand of the learned counsel for the petitioner is that to allow this concession to the prosecution after 13 years of the trial and more than 20 years after the registration of the case against him and that too after recording of his statement under section 313, Criminal Procedure Code wherein he has disclosed his entire defence, is not only unjust but is traversity of justice. THE petitioner, according to the learned counsel, is facing this trial for the last 13 years and court bas now virtually ordered the retrial of the case or has directed the commencement of the proceedings afresh. Above all that, all this bas been done by the trial court at the instance of the complainant himself i.e. Bhagirath and not at the request of the Public Prosecutor. All that is being said on behalf of the respondent is that the lower court bas wrongly treated the application in question before it as an application for additional evidence. Rather it is an application under section 319(4), Criminal Procedure Code, whereby it bas been brought to the notice of the court that subsequent to the summoning of the accused under section (1) of that section the Court had to proceed against the accused afresh by recalling the witnesses already examined or in other words to commence the proceedings de novo so far as that accused is concerned. Be that as it may, the fact remains that either the Court or the prosecution bas not done what it should have done 13 years ago when the petitioner was summoned as an accused for the first time. I Feel no justification on the part of the prosecution or the complainant to make this belated move which undoubtedly is likely to prejudice the petitioner in as much as it provides an opportunity to the prosecution or the complaint to fill in the lacuna in the case and this is bound to prejudice the petitioner. This is more so when he has already made his statement under section 313, Criminal Procedure Code, in the light of the material, which already existed on the record. Thus for the reasons recorded above, I allow this petition and set aside the impugned order of the trial court. THE case is thus sent back to the trial court for concluding the proceedings in accordance with law. Petition allowed.