ANANDKUMARSINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This petition, under Section 482 of the Code of Criminal Procedure, 1973 ('the Code' for short), is directed against an order dated 9.8.1988 passed by the learned Sessions Judge, Munger, in Cr. Revision No. 79 of 1988, whereby the learned Sessions Judge has set aside the order dated 11.2.1988 passed by Sri R.K. Srivastav, Judicial Magistrate, 1st Class, Lakhi Sarai, in G.R. No. 284 of 1986 rejecting a petition filed under Section 311 of the Code praying for allowing the prosecution to examine three prosecution witnesses at a stage when the evidence of the prosecution side had already been closed, accused, examined under Section 313 of the Code and the case was pending for judgment.

(2.) The petitioners were accused in a case bearing G.R. No. 284 of 1986 and had been charged of the offences punishable under Sections 323 and 325 of the Indian Penal Code. The charges had been framed on 19.11.1986 and thereafter several adjournments, as may as 13, had been allowed till 24.8.1987 for producing the witnesses of the prosecution side but no witness of the prosecution was produced. Later one witness was produced on 8.9.1987 and thereafter five further adjournments were allowed but no further witness was produced. Then the prosecution evidence was closed, the petitioner-accused were examined under Section 313 of the Code and the case was fixed for judgment on 19.12.1987. On that date the prosecution side filed a petition praying for allowing the prosecution to examine three witnesses and after hearing the parties on that petition, the learned Judicial Magistrate by order dated 11.2.1988 rejected the petitioner observing that the prosecution could not be allowed to fill up lacunae when it had failed to produce the rest witnesses. Against the order dated 11.2.1988 of the learned Judicial Magistrate, the informant filed a revision petition before the learned Sessions Judge bearing Cr. Revision No. 79 of 1988 and the learned Sessions Judge by the impugned order dated 9.8.1988 has disposed of the revision petition with the following concluding observations and directions:

(3.) Learned counsel for the petitioners has strongly contended that the learned Sessions Judge has not considered the true import and purport of Section 311 of the New Code and that section cannot be used for the purpose of filling up lacuna, if any, that has been left out in the evidence of the prosecution, and the view taken by the learned Sessions Judge is against the decision of this Court in the case of Rajendra Prasad Singh alias Khiru Singh & others v. Ramuchit Singh alias Chhotan Singh, 1984 BBCJ 657. According to his submission, the prosecution had been allowed by the Judicial Magistrate several opportunities to produce the witnesses, but the opportunities were not availed of, and ultimately when the case was fixed for judgment, the prosecution filed a petition to examine three witnesses, and the learned Judicial Magistrate in the back ground of the case was absolutely justified in rejecting the petition filed by the prosecution; but the learned Sessions Judge has legally and improperly set aside the order of the learned Judicial Magistrate and has allowed the prosecution at a very belated stage, to fill up lacuna, that had been left by the prosecution.