KESHAV CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Ss. 397 and 401 of the Code of Criminal Procedure, 1973 (in short the 'Code') is directed against an order dated 28-8-1995 passed by the 5th Additional Sessions Judge, Samastipur in S.T. No. 151 of 1991 by which the learned Court below allowed a petition filed by the prosecution under S. 311 of the Code and re-opened the entire prosecution case.

(2.) It appears that on the Fardbeyan of one Ram Ekbal Choudhary the police drew up a formal FIR and registered Kalyanpur P.S. Case No. 123/90 for the offence under Ss. 341, 323, 379/34 of the Indian Penal Code. The charge dated 15-6-1993 under Ss. 341, 323, 325, 379 and 307/34 of the Indian Penal Code was submitted. After following the necessary commitment enquiry the case went to the Court of the learned 5th Additional Sessions Judge, Samastipur for holding the trial. Further case of the petitioner is that no prosecution witnesses could be produced before the trial Court though various dates such as 24-6-1993, 25-6-1993, 26-6-1993 and 28-6-1993 were fixed in it. The learned Court below also issued bailable and non-bailable warrants of arrest against the witnesses through the Superintendent of Police, Samastipur by his order dated 3-2-1994 but in spite of that no prosecution witnesses turned up after a lapse of more than two years of the no-opening of the case as a result of which the prosecution case was closed by an order dated 31-5-1995 by the trial Court and the statement of the accused persons under S. 313 of the Code was recorded. The case was adjourned to 6-6-1995 for defence, if any, and argument.

(3.) On this date the Hajiri of one witness by the learned Additional Public Prosecutor was filed with a petition to which a rejoinder petition was filed on behalf of the defence. However, the learned trial Court by the impugned order re-opened the case of the prosecution under S. 311 of the Code and directed the Additional Public Prosecutor to produce his witnesses. Section 311 of the Code does not confer any such power on the trial Court to re-open the entire prosecution case. Since the trial Court had closed the prosecution case he cannot re-open the same which will amount to reviewing his earlier order dated 31-5-1995. The recourse toS. 311 cannot be taken by the learned Additional Sessions Judge under the facts and circumstances of the case. Hence it has been contended that the impugned order be quashed.