- (1.) In Sessions Trial No. 228 of 1983, the prosecution evidence was closed. After closing of the prosecution evidence before statement of the accused under S. 313 of Cr. P.C. was recorded and an application was filed by the prosecution for permission to file a number of documents in the case. The application of the prosecution for filing of the documents was opposed by the accused persons on the ground that the trial is of 1983 and after a lapse of about 8 years. The prosecution is now proposing to file certain documentary evidence in the case, which will in other words, reopen the prosecution case and the accused shall be highly prejudiced in their defence. The counsel for the State appears to have cited 1952 All LJ 668: Munshi Singh v. State, learned single Judge of this Court in the said judgment observed that the proceedings in the criminal trials are not like the proceedings in the civil court. There is no fixed stage at which the documents to be relied by the prosecution has to be filed. It was observed that the prosecution can produce its witnesses and file documents in any order it likes at any stage it likes. After this observation, the learned Judge observed that : (Para 3) "When the prosecution is its own judge of the order in which witnesses are to be produced, it follows that documents which require to be proved can lawful, come on the record only when the witnesses who prove those documents are examined, and that therefore the stage for the coming on the record of the provable documents will be in the discretion of the prosecution, and the accused cannot force the prosecution to produce any documents at any stage. In fact, even if a certain document which requires to be proved happens to be among the papers which are before the Court it would be the bounder duty of the court not to refer to that document until it has been duly proved and marked as an exhibit." The learned court below relying on the aforesaid observations of the case law, passed orders permitting the prosecution to file documentary evidence in the case. The learned Judge has completely missed to note that the case cited was wholly distinguishable. In the said case, the prosecution evidence had not been closed whereas in the present case, the prosecution evidence have been closed. As such, the observations made in the said judgment are not applicable to the present facts 'and circumstances of the case. It is further important to note that the learned Judge has not exercised powers under section 311, Cr. P.C. He has not felt any necessity of those documents which are now being filed by the prosecution for the proper adjudication of the case. In fact, it was only at the instance of the prosecution that the said documents were directed to be admitted on record. As such, it cannot be argued that in exercise of powers of section 311, the Court has discretion to permit the prosecution to examine the said witnesses. In view of the fact that for the present trial, it shall not be open for the Court to ask for prosecution the documents as material evidence required under section 311, Cr. P.C.
(2.) The prosecution has neither supplied the copies of the documents which they propose to file at this stage, after closing of the evidence nor is there any mention of those documents in the order impugned. It is also not known whether the documents which were sought to be filed in evidence were such evidence which could be admitted without formal proof. In the facts and circumstances, I consider that the order impugned cannot be allowed to stand and is liable to be quashed. It is not fair that the prosecution may take advantage of the delay in proceedings. They have already consumed more than 9 years in prosecution of the case which is pending in the court below since 1982 and now the said additional evidence is sought to be adduced. In criminal cases the principle of compensating the other side by paying money is not always applicable. The lower court below was not correct in saying that an amount of Rs. 100.00 would suffice the ends of justice to permit the prosecution to adduce the evidence. In view of the facts and circumstances, the order impugned is set aside and petition under S.482, Cr. P.C. allowed.
(3.) I heard the learned counsel for the State as well as the applicants counsel and on their statement, this petition is being finally allowed without admitting it.;