HARISH CHANDRA MISHRA, J. - (1.) HEARD learned counsel for the petitioner and learned A.P.P. for the Prosecution. The petitioner has challenged the order dated 04.08.2010 passed in O.C.R. Case No. 51 of 1999 by Shri A. K. Dubey, learned Judicial Magistrate, Rajmahal, whereby the petition filed on behalf of the prosecution under Section 311 Cr.P.C. on 19.06.2010 was allowed and the prosecution was allowed to examine the witness in the case after the prosecution evidence was closed.
(2.) IT appears that the petitioner has been made accused in O.C.R. Case No. 51 of 1999 as the stone crusher of the petitioner was inspected on 29.05.1998 and it was found that one boy aged about 12 years was engaged therein. Accordingly, the prosecution report was filed against the petitioner. It also appears from the impugned order itself that a substance of the accusation was explained by the petitioner on 28.11.2000 and thereafter by order dated 21.04.2008 the prosecution evidence was closed in view of the fact that during the said period not a single witness had been examined by the prosecution. After about two years of closing the prosecution evidence, one application was filed by the prosecution on 19.06.2010 for examining one P.W. who was the complainant in the case, stating that the said witness was in attendance in the Court below on 06.08.2004, but he could not be examined as the bail bond of the accused was cancelled on the said date. However, this fact is not supported by the impugned order, inasmuch as, it appears from the impugned order that on 06.08.2004 there was no proper pairvi on behalf of the petitioner and even the advocate of the petitioner had not appeared and, accordingly, the said witness could not be examined. However, the fact remains even thereafter for more than three years the said witness was not examined and the prosecution evidence was closed on 21.04.2008. By order dated 04.08.2010 the application filed by the prosecution under section 311 Cr.P.C. was allowed mainly on the ground that the said witness was in attendance on 06.08.2004 but he could not be examined due to laches on the part of the petitioner on the said date. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as, the substance of the accusation was explained the petitioner on 28.11.2000 itself and due to the fact that not a single witness was examined for more than seven years, the prosecution evidence was closed on 21.04.2008. Learned counsel for the petitioner accordingly, submitted that the petitioner was being unnecessarily harassed in the Court, that too in a summons case and it is not the fact that the bail bond of the petitioner was cancelled, rather the impugned order clearly shows that the petitioner had not only made the proper pairvi on the said date. Learned counsel for the petitioner accordingly submitted that the impugned order cannot be sustained in the eyes of law.
(3.) AFTER having heard both the sides, I am of the considered view that even though the said witness was in attendance in the Court below on 06.08.2004, but there appearance to be no reason as to why the witness was not examined thereafter till 21.04.2008, i.e., more than three years, when the prosecution evidence was closed. Subsequently, by the impugned order dated 04.08.2010 the Court has allowed the application under Section 311 Cr.P.C. for examination of the witness, though it is apparent that no witness was examined for about more than seven years and the prosecution evidence was closed. After the lapse of more than nine years the prosecution had filed the application in the Court below for examining the complainant which certainly amounted to fill up the lacuna by the prosecution and, accordingly, I find force in the submission of the learned counsel for the petitioner that the said witness could not have been allowed by the Court to be examined under Section 311 Cr.P.C. There appears to be no reason as to why the witness was not examined by the prosecution for years together. I am of the considered view that after the lapse of undue delay, the prosecution has tried to fill up the lacuna, without giving any valid reason for the same. As such, the impugned order is absolutely illegal and cannot be sustained in the eyes of law.;