Jharkhand High Court
Bhim Modi vs State Of Jharkhand & Anr on 7 November, 2014
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr.Revision No. 582 of 2011
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Bhim Modi ... Petitioner.
Versus
State of Jharkhand & Anr. ... Opposite Parties.
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CORAM : HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Petitioner : Mr. Shailesh, Advocate.
For the State : A.P.P.
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07/07.11.2014This revision is directed against the order dated 20.07.2011 whereby the application under Sectio 311 Cr.P.C. filed by the complainant was allowed in C.P. Case no.1295 of 2005 pending in the court of Judicial Magistrate, Dhanbad.
Learned counsel for the petitioner while assailing the impugned order has argued that earlier the trial court vide its order dated 18.09.2010 had rejected the prayer of O.P.no.2 to produce the witness whereafter the case was closed on 30.02.2010; that O.P.no.2 i.e. the complainant did not file any revision or appeal against the said rejection order; that after conclusion of the argument by the defence on 02.12.2010 when the case was fixed for argument of the complainant the application under Section 311 Cr.P.C. was filed by the complainant for examination of a witness which was allowed by the trial court and such an order amounts to review of the earlier order which is impermissible in law. It has also been submitted that the complainant with intention to harass the petitioner-accused and with a view to prolong and delay the trial filed the application after such delay despite several opportunities were given to her to produce the witnesses during the trial but she failed to produce the evidence. In support of the contention learned counsel has referred to the certified copies of the order-sheets of the trial court at Annexure-2.
Learned counsel for O.P.NO.2 has submitted that he has given no objection and O.P.no.2 has taken the file from him.
Heard.
The contention of the learned counsel for the petitioner that order dated 20.07.2011 amounts to reviewing the earlier order dated 18.09.2010 passed by the trial court is not acceptable for the reason that on 18.09.2010 the petition was filed praying for time to produce the witnesses and there was no application under Section 311 Cr.P.C. whereas the impugned order has been passed on the petition under Section 311 Cr.P.C.and the scope and jurisdiction and power of the court under Section 311 Cr.P.C. is entirely different, accordingly, the impugned order cannot be said to review of order dated 18.09.2010. Section 311 Cr.P.C. is a salutary provision which empowers the court to examine any person in attendance or summon, re-examine or recall any witness. The first part of the provision pertains to discretionary authority of the court and the second part is mandatory and imposes an obligation on the court to recall or to re-examine any witness if it appears to the court that the evidence of the witness is essential for the just decision of the case.
In the present case, on going through the certified copies of the order-sheets of the trial court, it is evident that the substance of accusation was explained on 30.09.2008 and the case was fixed for evidence by the complainant and the complainant on several dates filed application seeking time; that on 30.06.2009 the complainant filed petition praying for time whereupon the court directed the complainant to remain physically present; that on the next date again a time petition was filed whereupon the court directed the complainant to deposit a cost of Rs.100/- and to remain physically present. That on 04.09.2009 the complainant again fled a time petition and the court, by way of last indulgence allowed the same and directed all the accused to remain physically present. On 24.11.2009 all the three accused persons were present and again time petition was filed by the complainant to produce the witness and the court allowed the petition on imposing a cost of Rs.100/-. It is evident from the order sheets that neither the complainant deposited the cost as ordered by the court nor produced the witness despite the direction of the court to the complainant and witness to remain physically present on the next date; inspite of such specific direction again time petition was filed by the complainant on 15.06.2010. That by order dated 30.08.2010 the trial court rejected the application for time for producing witnesses as the complainant had not deposited the cost as ordered by the court and closed the complainant's evidence; that on 18.09.2010 the complainant's petition praying for time for producing the witnesses was rejected and statement of the accused was recorded under Section 313 Cr.P.C. On 13.12.2010 an application was filed under Section 311 Cr.P.C. by the complainant for examining a witness and after hearing the parties the trial court has passed the impugned order after nearly six months.
No doubt power under Section 311 Cr.P.C. can be exercised at any stage of enquiry, trial or proceeding and it is settled principle that the trial or enquiry does not terminate till pronouncement of judgment or passing of order. However, in the present case, as noticed above, several opportunities had been given to the complainant to produce witness but the complainant with intent to delay/prolong the trial kept filing petition seeking time to produce witness. The onus was on the complainant to produce the witness and it is apparent from the order- sheets that the court had on couple of occasions directed the complainant to be physically present alongwith the witness but the complainant adopted delaying tactic by repeatedly seeking adjournment to produce the witness. It is noticed that the case is summons triable. Section 258 Cr.P.C. prescribes for speedy trial and disposal of the case,however, even after lapse of two years after substance of accusation was explained and several opportunities were given to the complainant the witnesses were not produced by her.
The essence of invoking the power under Section 311 Cr.P.C. is to ascertain the truth or to bring on record material evidence which appears essential for the just decision of the case. It is true under Section 311 Cr.P.C. the court is vested with wide discretion to exercise the power at any stage but such power is to be exercised sparingly taking into account the attending facts and circumstances in a suitable case. Even in a case where the evidence is closed the court can exercise the discretion of examining a witness but the provision of the section is not an umbrage or a recourse to be utilised by either the prosecution or the defence to abuse the process of court or to delay and prolong the trial.
In the factual scenario of the instant case it is evident that the conduct of the complainant is not above board as despite full opportunity and indulgence given by the trial court she neither examined herself nor produced witnesses nor complied with the orders of the court. In fact she has played truant and adopted dilatory tactic by seeking unnecessary adjournments without complying with the order of the court with intent to delay and prolong the trial.
Thus, considering the conduct of the complainant and in the surrounding facts and circumstances the order dated 20.07.2011 of the trial court is not sustainable and is accordingly set aside.
In the result, the revision stands allowed.
(Amitav K. Gupta, J.) Biswas