GAURI SHANKAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Jagnnath Singh, learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the State.

(2.) This application has been filed for quashing the order dated 23.1.2004 passed by Smt. Indu Singh, Executive Magistrate, Sadar, Darbhanga in M.R. No. 725 of 1989, Trial No. 158 of 2003 (Gauri Shankar Jha vs. Rajendra Jha), whereby a petition filed on behalf of the Complainant-petitioner for his own examination under Section 311 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') as also for allowing documentary evidence was rejected. The petitioner also questions the order dated 26.3.2009 passed by Sri B.N. Prasad, learned F.T.C.-II, Darbhanga in Criminal Revision No. 83 of 2004, whereby he has affirmed the order passed by the Sub-Divisional Magistrate.

(3.) Facts of the matter are not in dispute. A proceeding was initiated at the instance of the petitioner under Section 144 of the Code. After service of notice the opposite party appeared in the matter. After filing of written statement the matter was posted for evidence of the first party and which was closed on 3.7.1996 and the matter was posted for evidence of the second party which also stood closed on 2.12.2003. In the meanwhile, a petition was filed by the petitioner-first party under Section 311 of the Code for recall of the order dated 3.7.1996 and for allowing his evidence in the matter as also for filing certain documentary evidence. The said application was rejected by the court below by order dated 31.7.1996. It is not in dispute that the said order dated 31.7.1996 was never challenged by the petitioner before any superior court and thus has attained finality. It is also a matter of record that the evidence of the second party stood closed on 2.12.2003 and whereafter a second petition was filed on behalf of the petitioner on 23.12.2003 while the matter was posted for argument. A prayer was made in the light of the provisions of Section 311 of the Code on behalf of the petitioner for allowing his evidence to be led in the matter. The said application was rejected by the learned Executive Magistrate, Sadar, Darbhanga by order dated 23.1.2004, inter alia, on grounds that a similar application had been rejected in this regard on 31.7.1996. The revision preferred by the petitioner as against the said order giving rise to Criminal Revision No. 83 of 2004 was also rejected under the order dated 26.3.2009 by Sri B.N. Prasad, learned F.T.C.-II, Darbhanga. The learned F.T.C.-II, Darbhanga while considering the prayer of the petitioner has observed that despite opportunity having been provided to the first party to lead his evidence he has not carried out the same and thus attempt was being made to linger the matter.