DEVKINANDAN SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated April 20, 1991, passed by the Additional Sessions Judge No. 2, Udaipur, by which the learned Additional Sessions Judge dismissed the revision petition, filed by the petitioner.

(2.) ACCUSED-petitioner is facting trial for the offences under Sections 457 and 380 Cr. P. C. in the Court of the Munsif and Judicial Magistrate, First Class, Kherwada since 1981. The challan in this case was presented in the Court of the learned Magistrate, in the year 1981 and the process for examining the witnesses were issued in the year 1982, and PW 1 Dinesh Kumar was examined by the Court on 14-8-1985. PW 2 Pritam Singh was examined on 13-7-1987 and PW 3 and PW 4 were examined on 11-11-1987. PW 5, PW 6, PW 7 and PW 8 were examined on 27-5-88. After examinirg eight witnesses by the prosecution, only the Investigating Officer Shri Mohan Lal Soni remained to be examined, but he did not appear inspite of the bailable warrant issued to secure his attendance. On 28-5-88, since Mohan Lal Soni was not present and, therefore, bailable warrant was issued and the matter was reported to the higher authorities to get the service of the bailable warrant effected on Mohan Lal Soni so that he may be examined, but inspite of the Court's specific orders, the witness, viz. , Mohan Lal Soni, was not produced and the case was adjourned for recording his evidence on 20-7-88, 5-11-88, 5-1-89, 31-1-89 and 10-3-89. On 10-3-89, the learned Assistant Public Prosecutor moved an application under Section 311 Cr. P. C. for recalling and re-examining certain witnesses. Mohan Lal Soni was not present on that day, also, and, therefore, he could not be examined and the matter was adjourned to 12-4-89. On 12-4-89, Mohan Lal Soni was not present and, therefore, his evidence was closed. However, the learned Magistrate observed that on the next date of hearing, i. e. on 3-5-89, if Mohan Lal Soni appears then his statement may be recorded, otherwise the statement of the accused under Section 313 Cr. P. C. may be taken. The learned Magistrate, also, considered the application under Section 311 Cr. P. C, filed by the Assistant Public Prosecutor and rejected the same. On 3-5-89, Mohan Lal Soni was not present, but the statement of the accused could not be recorded under Section 313 Cr. P. C. and the case was adjourned to 8-6-89. On 8-6-89, the Presiding Officer was on leave, but Mohan Lal Soni wag present and, therefore, the case was adjourned to 5-7-89 and although Mohan Lal Soni was bound-down by the Court to appear on the next date but he did not appear on that day. Mohan Lal Soni did not appear on 5-7-89, 9-8-88, 3-9-89 and 18-10-1989 though bailable warrants were issued. On 18-10-89, the learned Magistrate ordered for the closure of the evidence of Mohan Lal Soni and the case was fixed for recording the statement of the accused under Section 313 Cr. P. C. on 29-11-89. It was, however, observed by the learned Magistrate that if Mohan Lal Soni appears on the next date of hearing then his evidence may be recorded. On 29-11-89, Mohan Lal Soni did not appear and, therefore, his evidence was finally closed and the case was fixed for recording the statement of the accused under section 313 Cr. P. C. on 10-1-90. On 10-1-90, the statement of the accused was recorded and the case was fixed for recording the defence evidence on 9-5-90. On 9-5-90, the accused got himself examined as DW 1 and the case was fixed for arguments on 16-5-90. On 16-5-90 and thereafter on 25-7-90, the arguments could not be heard and the case was adjourned to 1-8-90. The matter was finally heard by the learned Magistrate on 1-8-90, 8-8-90 and 22-8-90, and after hearing the arguments, the learned Magistrate fixed the case for pronouncement of the judgment on 29-8-90. On 29-8-90, instead of pronouncing the judggment, the learned Magistrate passed the impugned order recalling and re-examining PW1 Dinesh Kumar and PW 6 Sushil Chandra Patni. He, also, ordered to call Shri Mohan Lal Soni. Dissatisfied with the order dated 29-8-90, passed by the learned Munsif and Judicial Magistrate, Kherwada, the petitioner preferred a revision petition before the learned Sessions Judge, Udaipur, which was transferred for disposal to the learned Additional Sessions Judge No. 2, Udaipur, who, by his order dated 20-4-91, dismissed the same. Aggrieved with the order dated 20-4-91, the petitioner has preferred this miscellaneous petition.