Patna High Court - Orders
Rita Devi & Anr vs The State Of Bihar on 18 December, 2013
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.48856 of 2013
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1. Rita Devi Wife Of Ashok Kumar R/O Mohalla- Katra, Barhari, P.S.-
Bhagwan Bazar, District- Saran At Chapra
2. Nikki Kumari D/O Ashok Kumar R/O Mohalla- Katra, Barhari, P.S.-
Bhagwan Bazar, District- Saran At Chapra
.... .... Petitioners.
Versus
The State Of Bihar
.... .... Opposite Party.
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Appearance :
For the Petitioners : Mr.
For the State : Mr.
For the opposite party No.2 : Mr.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
5 18-12-2013Heard learned counsel for the petitioners as well as learned Additional Public Prosecutor for the State and in my view, this petition can be disposed of, on admission stage itself without giving notice to the informant of the present case.
Petitioners have prayed for quashing the order dated 03- 07-2013 passed by learned Additional Sessions Judge-I, Chapra in Sessions Trial No. 910 of 2011 arising out of Bhagwan Bazar P. S. Case No. 43 of 2011 by which and whereunder, he discharged the prosecution witness No. 3 namely, Gyanmala Kumari.
In Bhagwan Bazar P.S. Case No. 43 of 2011, petitioners and others were made accused for the offence under Section- 366(A) of the Indian Penal Code and accordingly, they were put Patna High Court Cr.Misc. No.48856 of 2013 (5) dt.18-12-2013 2 on trial in Sessions Trial No. 910 of 2011. On 03-07-2013, the prosecution examined the victim, Gyanmala Kumari as prosecution witness No. 3. Her examination-in-chief was recorded but at the time of cross-examination, a petition was filed on behalf of the defence, praying therein to defer the cross-examination as the original statement of the victim recorded u/S 164 of the Criminal Procedure Code, was not available. The learned Additional Sessions Judge-Ist, Saran at Chapra refused the aforesaid prayer, on the ground that the Photostat copy of the statement of the victim, recorded u/S 164 of the Criminal Procedure Code, was available on the record and defence was in a position to cross-examine the witness. The learned Additional Sessions Judge, not only rejected the aforesaid prayer, but also, discharged the witness.
Later on, three petitions, on different dates, were filed on behalf of the defence for recall of P.W. 3 for her cross- examination but as per submission of learned counsel for the petitioners, no order was passed by the learned Trial Judge on the aforesaid petitions and the aforesaid petitions are still pending.
Learned counsel for the petitioners submits that the victim girl (P.W. 3) made her statement u/S 164 of the Criminal Procedure Code but when her statement was recorded in course of Patna High Court Cr.Misc. No.48856 of 2013 (5) dt.18-12-2013 3 trial, she completely changed her statement. It is further contended by him that at the time of examination of victim (P.W. 3), the original statement of victim, recorded u/S 164 of the Criminal Procedure Code, was not on the record and according to impugned order of learned Additional Sessions Judge, a Photostat copy of the statement of victim, recorded u/S 164 of the Criminal Procedure Code was on the record and the court compelled the defence to cross-examine P.W. 3 on the basis of aforesaid Photostat copy of the statement of victim but it was not possible because admittedly, the aforesaid Photostat copy of statement of victim could not have been exhibited, without proving the loss of original copy. It is submitted that the learned Additional Sessions Judge failed to understand the aforesaid features of the law and passed impugned order in a very haste manner. It is further contended by him that after passing of the impugned order, defence prayed several times before the trial court to recall P.W. 3 but learned Additional Sessions Judge, either on this or that pretext, refused to recall P.W. 3 for her cross-examination.
From perusal of the record, I find substance in the contention of learned counsel for the petitioners. Furthermore, I find, from perusal of order dated 03-08-2013, passed by learned Additional Sessions Judge-Ist, Chapra, in above-said Sessions Patna High Court Cr.Misc. No.48856 of 2013 (5) dt.18-12-2013 4 Trial No. 910 of 2011, that when petition filed on behalf of the defence for recall of P.W. 3 was pressed, the learned Additional Sessions Judge-Ist, Chapra passed a detailed order, giving another direction to involved issue. Moreover, in my view, when original statement of victim recorded u/S 164 of the Criminal Procedure Code was not available on the record, the learned Additional Sessions Judge ought to have deferred the cross-examination of P.W. 3 till receipt of the aforesaid original document.
Admittedly, petitions filed on behalf of the defence on different dates for recall of P.W. 3 are still pending and as per submission, the prosecution evidence is still going on. Therefore, in the aforesaid circumstances, I think it proper to quash the impugned order.
Accordingly, the impugned order dated 03-07-2013 passed by learned Additional Sessions Judge-Ist, Chapra in Sessions Trial No. 910 of 2011 arising out of Bhagwan Bazar P. S. Case No. 43 of 2011 is quashed with direction to the learned trial court to recall P.W. 3 for her cross-examination, and shall give at least, two days to defence for cross-examination of the aforesaid witness, if, her cross-examination is not completed in a day.
Accordingly, this petition stands disposed of.
(Hemant Kumar Srivastava, J) A.K.V./-