IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24961 of 2006 LALO JHA @ LAL BABU JHA & ANR Versus STATE OF BIHAR & ANR ----------- For the petitioners : Mrs. Anjana Prakash, Sr. Advocate, and Mr. Manoj Kumar Jha, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P _______ O R D E R This application has been filed for quashing of the order dated 18.2.2006 passed by Sri Sushil Kumar, learned Presiding Judge, F.T.C. No.I , Bhagalpur , in Sessions Trial No.284 of 2005, arising out of Bath P.S. Case No.1 of 2002 ,by which the evidence of the defence has been directed to be closed without allegedly giving sufficient opportunity to the petitioners. In view of the nature of the case, the details of the prosecution case may be noticed with brevity. According to the fardbeyan given by the informant, Manju Devi, who has been impleaded as Opp.Party No.2 herein, to the Officer Incharge of Bath Police Station, at about 12.30 P.M. on 1.1.2000, she was going to the field of Dashrath Kumar at about 3 P.M. in the evening of 31st December,2001, for bringing paddy bundles in the Khalihan along with one Geeta Devi and when all of a sudden petitioners arrived and petitioner no.2 confined Geeta Devi whereas petitioner no.1 took her to an empty ditch surrounded by a hedge and committed rape on her twice .Thereafter, petitioner no.1 caught hold of Geeta Devi whereas petitioner no.2 took his turn to ravish the informant twice, as a result whereof she became unconscious seeing which the petitioners fled. - 2 - Having regained her consciousness the informant gave her fardbeyan to the police. On commitment charges were framed against the petitioners and at the trial out of eighteen chargesheeted witnesses, seven prosecution witnesses were examined. Thereafter, the prosecution evidence was closed on 15.9.2005 on the prayer of the Additional Public Prosecutor and the statements of the two petitioners under Section 313 Cr.P.C. were recorded by the trial court on 16.9.2005 and the next date fixed for defence witness was 4.10.2005. The petitioners filed a list of defence witnesses, 24 in number, and prayed for issuance of summons to them. The petitioners also filed a petition along with a Nazir Slip No.72 of worth Rs.1200 on 20.10.2005 in compliance of the court’s order to deposit Rs.50/- each for each of the witnesses for issuing summons. Seven defence witnesses were examined on different dates and on 16.2.2006 D.W.4 – Durga Prasad Jha and D.W.5- Rajesh Singh were examined and cross- examined. On this date, the learned trial court directed the petitioners to produce the rest of the witnesses positively on the next date which would be the last opportunity to them and fixed date as 18.2.2006. On that day, the petitioners produced D.W.6- Bijay Jha and D.W.7-Jeevan Kumar Jha who were examined and cross-examined. Then a petition was filed by the petitioners in the court for issuing summons to one Rakesh Choudhary , an Executive Magistrate, the copy whereof was not served on the Additional Public Prosecutor. The learned court rejected the prayer of the petitioners by stating that since the case is under Section 341, 354, 376 , read with Section 34 of the Penal Code - 3 - and since the statements of the petitioners have been recorded on 16.9.2005, therefore, the prayer of the petitioners were rejected. On 18.2.2006 itself, a petition to recall the above order was filed by the petitioners which were ceremoniously rejected by the court. Mrs.Anjana Prakash learned, Senior counsel for the petitioners submitted that the learned court below has passed the order of closure of the case without giving sufficient opportunity to the defence to adduce evidence which was in violation of natural justice. She has further submitted that the case of the petitioners will be greatly prejudiced. After hearing the learned counsel for both parties, I am of the view that it is true that the learned court below has given sufficient opportunity to the petitioners to examine the defence witnesses on their behalf. It is also true that on 18.2.2006 the petitioners have examined two witnesses as D.W.6 and D.W.7 and only prayed for issuing the summons to ensure attendance of one Sri Rakesh Choudhary, Executive Magistrate, for his evidence. In my view for the interest of justice, the petitioners should be allowed at least one opportunity to examine the said witnesses. I , therefore, direct that the petitioners must examine the aforementioned witnesses on a date fixed by the learned trial court and shall also ensure that the rest of the witnesses, if any, should also be examined on that date. No unnecessary adjournments will be granted any further. With the aforesaid observations made above, the application - 4 - is partially allowed and the order of the learned trial court is modified and allowed to that extent. ( Abhijit Sinha, J) Patna High Court,Patna Dated: the 3rd September,2008 Nawal Kishore Singh/A.F.R.