- (1.) THE petitioner has invoked the jurisdiction under Article 226 of the Constitution of India with the prayer for issuance of an appropriate writ for quashing the order impugned dated 2.7.2007 passed by the and Additional Sessions Judge, Singhbhum West at Chaibasa in S.T. No.211 of 2003 whereby the petition filed under Section 311 of Cr. PC. on behalf of the complainant was allowed permitting the complainant -respondent no.2 to adduce evidence.
(2.) THE brief fact of the case as contained in Complaint Case No. 46 of 2002 was that the Respondent No. 2 -complainant had filed the Complaint Case in the Court of CJM, Chaibasa against the petitioner and four others who were admittedly his full brothers, sister and nephews residing in a common house with the allegation of assault and attempt to commit murder in furtherance of their common intention and accordingly, charge under sections 323/379/341/427/307 read with Section 149 of the Indian Penal Code was framed after due enquiry on commitment by the Court of and Additional Sessions Judge and the petitioner alongwith others were put on trial. The learned counsel for the petitioner -accused submitted that the complainant -Respondent NO.2 was pursuing his case through private lawyer without the consent of the Additional Public Prosecutor in contravention of Section 301 of Cr. P.C. After framing 01 charge four witnesses including complainant -respondent NO.2 were examined. Respondent NO.2 appeared as PW. 4 on 20.2.2006 but he declined to adduce evidence in the trial court on the ground that since he had filed some applications before the Jharkhand High Court, he would not at that stage and accordingly he was discharged by the court after recording his statement as aforesaid (Annexure -3). The learned counsel further pointed out that the respondent no. 2 preferred a petition on 2.7.2007 before the trial court for his recall and other witnesses under Section 311 Cr. P.C. for evidence.
(3.) THE Trial Judge by impugned order dated 2.7.2007 observed that on the petition preferred on behalf of the opposite party No.2 under Section 311 of Cr. P.C. Sri U.S. Vidyarthi, Addl. Public Prosecutor appeared and submitted that the petition under Section 311 Cr. P.C. was not filed through him in contravention of Section 311 of Cr. P.C. and therefore, he had nothing to say on it but at the same time he had no objection, if time was granted. After hearing the parties the learned and addl. Sessions Judge further observed: - "After considering all the facts, and moreso, when the disposal of this trial is lingering since fairly long time from 25.7.2005 to drop the curtain and for meeting the ends of justice, I feel that the informant and other remaining witnesses should be examined for drawing a rightful and legal conclusion. Under such circumstances petition uncer Section 311 of the Cr. P.C. is allowed. The informant must remain present on the date fixed for his evidence along with his other witnesses. He should also furnish the name of other witnesses whom he intends to examine in this case. He will file his petition through the conducting A.PP in accordance with the provision containing in the Cr. P.C. Put up on 12.7.2007 for recording evidence of the informant and other witnesses. All the accused persons are directed to remain physically present in the court on the date fixed.";