- (1.) THE petitioner in this application has prayed for quashing the order dated 28.6.2006 passed by the Additional Sessions Judge, FTC II, Bermo at Tenughat in S.T. No. 58 of 1998 whereby the petition filed under section 311 Cr.P.C. on behalf of the prosecution for examining certain witnesses was allowed.
(2.) THE petitioner had objected to the prayer made by the prosecution on the ground that the prayer is not maintainable, since sufficient opportunity was already availed by the prosecution for adducing evidence and the prosecution evidence were closed and therefore the prayer of the prosecution to permit it to examine further witnesses would amount to filling up lacunae. Learned counsel for the petitioners submits that the case was registered on the basis of the FIR of the informant lodged on 1.3.1996 for offences under sections 147/148/447/323/324/325/307 IPC. Charge -sheet was submitted by the investigating officer for the aforesaid offences on 18.6.1996, followed by a supplementary charge -sheet submitted on 30.11.1996 whereafter cognizance of the offence was taken by the learned CJM and the case was committed to the court of sessions in the year 1998. Eventually, charge was framed against the accused petitioners on 17.2.2003 by which trial had commenced. The first witness was examined by the prosecution on 19.11.2003. 2nd witness was examined on 11.12.2003. Two more witnesses were examined on 9.1.2004 followed by examination of 5th witness on9.12.2004. After lapse of about 10 months, 6th witness was examined by the prosecution on 26.10.2005. Considering the delay in examination of the witnesses, the court had allowed an opportunity to the prosecution by way of last chance to examine remaining witnesses on 21.1.2006. Since the prosecution had failed to comply with the order not only on 21.1.2006, but also on the next date i.e. 27.2.2006, the trial court had closed evidence of the prosecution by its order dated 27.2.2006, posting the case for defence evidence and arguments. Yet, after more than two months of the aforesaid order, the prosecution had filed its petition on 4.5.2005 under section 311 Cr.P.C. praying for allowing it to examine further witnesses. The petitioner had opposed the prayer by filing rejoinder, but despite the objection the trial court had allowed the prayer of the prosecution by the impugned order dated 28.6.2006 without considering the fact that the trial since after its commencement in the year 2001, could not be complete even after five years and the delay being caused entirely on account of the slackness of the prosecution. Learned counsel further adds that by passing the impugned order, the trial court has virtually recalled its order dated 27.2.2006 by which the prosecution evidence was closed. It is further stated that the court below has erred in failing to consider that the prosecution has not offered any satisfactory explanation as to why it had not examined the witnesses earlier prior to the closing of the prosecution evidence, even though two of them are official witnesses. Learned counsel adds that the learned court below has erred in observing that the informant, the doctor and the investigating officer are essential for the purpose of just decision of the case without appreciating the fact that the injured witnesses as well as the doctor who had examined them were already examined by the prosecution.
(3.) LEARNED counsel for the State seeks to justify the impugned order of the court below by contending that the order indicates that power under section 311 Cr.P.C. was invoked by the trial court for the purpose of just decision of the case.;