STATE OF SIKKIM Vs. THUKCHUK LSCHUNGPA

JUDGEMENT

(1.) The order dated 13th April, 2004 passed by the Sessions Judge (South and West), Namchi in S.T. Case No. 1 of 2004 arising out of Ranipool P.S. Case No. 12(5)2000, dated 14th May, 2000 under Sections 147/148/149/302, I.P.C. read with Section 25 of Arms Act, 1959, rejecting the application filed by the prosecution under Section 31, Cr. P.C. is the subject-matter under challenge in this Revision Petition.

(2.) The facts of the case, in a short compass, are as follows : On the basis of FIR dated 14th May, 2000 lodged at Ranipool P.S. alleging that the son of the informant, Dawa Tashi Bhutai was assaulted by a group of 10/12 boys with a iron rods, iron grills, stones and other dangerous weapons at Ray Khola, Ranipool at the instigation of the accused Thukchuk Lachungpa, the Ranipool P.S. Case No. 12(5) 2000, dated 14th May, 2000 under Sections 147/148/149/302, I.P.C. was registered against the accused Thukchuk Lachungpa and his associates and that, after the arrest of the accused persons, the accused Thukchuk Lachungpa and Sonam Chazor Bhutia were charged and sent up for trial and in the course of the trial as many as 28 prosecution witnesses were examined and the prosecution witness No. 29 was partly examined in the said case as on 2nd February, 2004. In the meantime, on 13th April, 2004 an application under Section 311, Cr. P.C. was filed by the prosecution before the trial Court for summoning one prosecution witness, namely, Shri Avichal, A.I.G., S.P.G. and examination of the said witness by contending, inter alia, that the said witness had not been examined as on 13th April, 2004 for various reasons which are on record, though he was all along present in the Court for his evidence on 2nd December, 2002 and 2nd February, 2004 coming on the way from Delhi and the said witness is an essential and important witness for the prosecution being the Supervisory Officer of the investigation and the said witness also heard the dying declaration of the deceased. The said application was rejected by the trial Court under the impugned order by holding that the similar prayer was made by the learned Public Prosecutor on 2nd February, 2004 and the trial Court on the said day, had rejected the prayer of the learned Public Prosecutor after discussing the provisions laid down under Section 311, Cr. P.C., 1973 and, the present prayer of the prosecution in the said application looks like asking the trial Court to review its order dated 2nd February, 2004 and, there is no provision in the Code of Criminal Procedure which permits the Court to review its order in the circumstances like the present case. Being aggrieved by the impugned order dated 13th April, 2004, the present petitioner filed this revision petition,

(3.) Supporting the case of the petitioner, i.e. the State of Sikkim, Shri S. P. Wangdi, learned Senior Counsel contended that the trial Court is erred in law by failing to appreciate the very purpose and object of Section 311, Cr. P.C., 1973 while passing the impugned order inasmuch as it is obligatory for the Court to afford opportunity either to the prosecution or the defence to produce evidence if the same is essential for just decision of the case.