Full Judgment
Amareshwar Sahay, J.
1. Heard the learned counsel for the parties.
2. In this application the petitioner has challenged the order dated 6-8-2002 passed by the learned Sub-Divisional Judicial Magistrate, Gumla in G. R. case No. 153 of 1995 corresponding to Gumla P. S. case No. 99 of 1995 whereby an application under Section 311, Cr. P. C. filed by the informant (petitioner) has been rejected.
3. For the purpose of deciding the issues in questions in this application, it is not necessary to state the facts in details. Suffice it to say that on the basis of the Fardbeyan of Saraswati Devi the informant (petitioner) a case under Section 498A/34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act was registered, in which the police, after investigation, submitted charge-sheet and ultimately after framing of the charges, the accused persons were facing trial. Against all the eight accused persons the charge under Section 498A/34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act was framed on 26-3-1998. and thereafter the prosecution, was asked to adduce the evidence. It appears that even after a lapse of about 5 months, no witness was produced on behalf of the prosecution in spite of the facts' that eight dates were fixed for producing the prosecution witnesses. On 12-8-1998 on behalf of the prosecution a petition was filed to the effect that since the prosecution witnesses were avoiding the attendance in the Court, therefore, bailable warrant of arrest be issued against them. The prayer was allowed and bailable warrant of arrest was issued against the witnesses Nos. 1 to 4 and the case was fixed on 21-9-1998 for evidence. Even then prosecution failed to produce any witness and the case was adjourned from time to time and after lapse of 11 dates fixed in the case, on 13-12-1999 a petition was filed on behalf of one of the accused persons namely Dal Daman Singh stating that Dal Daman Singh died on 1-12-1999 and thereafter again the case was adjourned times without number and the trial remained pending and ultimately on 11-6-2002 a petition was filed on behalf of the defence that since not a single witness has been produced by the prosecution, therefore, the prosecution case be closed. Thereafter the learned trial Court by its order dated 25-7-2002, after hearing the parties, held that in spite of the fact that sufficient opportunities were given to the prosecution to produce the witnesses and even warrant of arrest was issued but not a single witness was produced by the prosecution. Considering the fact that the case was of the year 1995 and case of the prosecution was closed and a date i.e. 6-8-2002 was fixed for recording the statements of the accused persons. On 6-8-2002 statements of the accused person were recorded under Section 313, Cr. P. C.
4. On 6-8-2002 after recording of the statements of the accused persons under Section 313, Cr. P. C., a petition under Section 311, Cr, P. C. was filed on behalf of the prosecution that evidence of the informant and other witnesses be allowed to be adduced which was seriously objected by the defence.
5. The learned Magistrate after considering the entire materials and after examining the record in details held that the case was lingering since 27-3-1998 for prosecution evidence. The prosecution was given more than enough opportunity but it could not produce any witness and ultimately after a detailed discussion the learned Magistrate rejected the application under Section 311, Cr. P. C. filed by the informant (petitioner).
6. The learned counsel for the petitioner has contended that for the ends of justice the prosecution may be given a chance to examine the informant and other witnesses though he admits that there was laches on the part of the prosecution in not examining the prosecution witnesses. The learned counsel for the opposite party has vehemently opposed the prayer of the petitioner.
7. Considering the respective submission of the parties and on perusal of the order sheet of the trial Court which has been annexed with the counter-affidavit, it is clear that the prosecution was highly negligent and it failed to produce even a single witness in spite of the fact that about 5 years was given to it for producing the prosecution witnesses but it failed without any reasonable cause. Only when the prosecution case was closed and the statements of the accused persons were recorded under Section 313, Cr. P. C., prosecution suddenly woke up and filed an application under Section 311, Cr. P. C.
8. Power under Section 311 of the Code can only be exercised, if the Court while hearing the case deems fit and proper to examine some witnesses for the ends of the Justice, to appreciate the prosecution case and to clarify any doubt in his mind. Therefore, it is clear that it is discretion of the trial Court to exercise such power but of course it has to be exercised judicially and not arbitrarily.
9. As it appears from the facts that in the present case that trial Court did give much indulgence to the prosecution for producing the witnesses and adjourned the case times without number and thereafter since the case was lingering for about five years without any evidence on behalf of the prosecution, therefore the learned Court below rightly closed the evidence and rejected the petition under Section 311, Cr.P.C. filed on behalf of the prosecution.
10. I find that the learned Magistrate has rightly exercised his discretion by not allowing the prosecution to adduce the evidence when the statement of the accused person under Section 313, Cr. P. C. has already been recorded. My view finds support with the decision reported in 2000 (1) East Cri C 630 (Pat): (2000 Cri LJ 3705), Keshav Chowdhary v. State of Bihar.
11. In that view of the matter I do not find any merit in this application. It is accordingly dismissed.