IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31418 of 2009 Gauri Shankar Jha, S/o Late Bindeshwari Jha, resident of village-Kabilpur, P.S. Bahadurpur, District-Darbhanga Versus 1. The State of Bihar 2. Rajendra Jha, S/o Late Saryug Jha, resident of village- Kabilpur, P.S. Bahadurpur, District-Darbhanga ---------------------------------- 02. 15.12.2011 Heard Mr. Jagnnath Singh, learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the State. This application has been filed for quashing the order dated 23.1.2004 passed by Smt. Indu Singh, Executive Magistrate, Sadar, Darbhanga in M.R. No. 725 of 1989, Trial No. 158 of 2003 (Gauri Shankar Jha Vs. Rajendra Jha), whereby a petition filed on behalf of the Complainant-petitioner for his own examination under Section 311 of the Code of Criminal Procedure (hereinafter referred to as the „Code‟) as also for allowing documentary evidence was rejected. The petitioner also questions the order dated 26.3.2009 passed by Sri B.N. Prasad, learned F.T.C.-II, Darbhanga in Criminal Revision No. 83 of 2004, whereby he has affirmed the order passed by the Sub-Divisional Magistrate. Facts of the matter are not in dispute. A proceeding was initiated at the instance of the petitioner under Section 144 of the Code. After service of notice the opposite party appeared in the matter. After filing of written statement the matter was posted for evidence of the first party and which was closed on 2 3.7.1996 and the matter was posted for evidence of the second party which also stood closed on 02.12.2003. In the meanwhile, a petition was filed by the petitioner-first party under Section 311 of the Code for recall of the order dated 03.07.1996 and for allowing his evidence in the matter as also for filing certain documentary evidence. The said application was rejected by the court below by order dated 31.07.1996. It is not in dispute that the said order dated 31.07.1996 was never challenged by the petitioner before any superior court and thus has attained finality. It is also a matter of record that the evidence of the second party stood closed on 02.12.2003 and whereafter a second petition was filed on behalf of the petitioner on 23.12.2003 while the matter was posted for argument. A prayer was made in the light of the provisions of Section 311 of the Code on behalf of the petitioner for allowing his evidence to be led in the matter. The said application was rejected by the learned Executive Magistrate, Sadar, Darbhanga by order dated 23.01.2004, inter alia, on grounds that a similar application had been rejected in this regard on 31.07.1996. The revision preferred by the petitioner as against the said order giving rise to Criminal Revision No. 83 of 2004 was also rejected under the order dated 26.03.2009 by Sri B.N. Prasad, learned F.T.C.-II, Darbhanga. The learned F.T.C.-II, Darbhanga while considering the prayer of the petitioner has observed that despite opportunity having been provided to the first party to 3 lead his evidence he has not carried out the same and thus attempt was being made to linger the matter. Learned counsel for the petitioner, in support of his contention that evidence could be led at any stage before the pronouncement of judgment in any proceedings, has referred to the judgment of the Supreme Court in the case of Shailendra Kumar Vs. State of Bihar since reported in (2002) 1 SCC 655 and a judgment of the Supreme Court rendered in the case of Rajendra Prasad Vs. Narcotic Cell reported in (1999) 6 SCC 110. It was sought to be canvassed that the powers under Section 311 of the Code, are of very wide amplitude and thus a party to the proceeding can be permitted to lead evidence at any stage of the proceedings but before the pronouncement of the judgment. Responding to the query of the court regarding the petitioner‟s failure to challenge the earlier order dated 31.07.1996, learned counsel referred to the judgment rendered in the case of Shailendra Kumar (supra) and submitted that in similar circumstance the Supreme Court had permitted leading of evidence even while a similar application had earlier been rejected. Learned counsel for the petitioner, with reference to the facts of the case, as set out in paragraph 5 of the said judgment, submitted that in the said matter an application of the prosecution for leading evidence was rejected by the court below on 02.06.2000 in the light of an order passed by the High 4 Court. It is contended that the Supreme Court, in similar circumstances, has reminded the courts, of its duty, in situations where the witnesses are not examined by reason of laches on the part of the prosecution and has permitted their examination. The facts of the case in the matter of Shailendra Kumar (supra) were distinct to the present case. In the said case, in absence of evidence being led by the prosecution, the trial court had closed evidence on 03.09.1994. The prosecution thereafter filed an application for transfer of the proceedings. However, during the pendency of the application, the court concerned superannuated and the matter was transferred to a different court. The successor court by order dated 20.09.1995 recalled the order of the closure of evidence and permitted the prosecution to lead evidence. This order was challenged by the accused persons by filing a criminal revision before this Court giving rise to Criminal Revision No. 530 of 1995 and which was allowed by a Bench of this Court by order dated 01.02.2000, inter alia, holding that there was no power vested in a criminal court for recall of its order. While the matter was pending trial the prosecution filed an application under Section 311 of the Code seeking to lead evidence. The trial court rejected the petition in the light of the order dated 01.02.2000 passed by this Court. Being aggrieved by the situation the informant moved this Court in Criminal Misc. No. 16453 of 2000 and which was dismissed by this Court, inter alia, on grounds of non- 5 interference with the powers of the trial court. The informant being aggrieved by the order of this Court filed an appeal before the Apex Court and which was the subject matter of the decision in the case of Shailendra Kumar. The judgment of the Supreme Court in the case of Shailendra Kumar no doubt lays down the well known principles of grant of permission to the parties concerned to lead evidence in a trial at any stage thereof but prior to delivery of judgment. However, it does not seek to answer the circumstance as existing in the present case in which a similar application of the petitioner for leading evidence under Section 311 of the Code stood rejected on 31.07.1996 and which order had attained finality as it was never challenged before any superior court. The issue stands answered by the judgment of the Supreme Court in the case of Hindustan Construction Company Ltd. Vs. Gopal Krishna Sengupta & Ors. reported in (2003) 11 SCC 210. This Court would do no better but to quote relevant portion of paragraph 25 of the judgment; “ 25. The question still remains whether, on facts of this case, the direction given in the order dated 19.10.2000 can be maintained. In the application there was no prayer to examine Pritika Prabudesai. The prayer was to quash the proceedings and start trial afresh. There is no provision in law which permits this. Thus the application could not be allowed. Undoubtedly, the High Court has proceeded on the footing that this evidence is essential and necessary. Section 311 of the 6 Criminal Procedure Code permits taking of evidence at any stage. The High Court undoubtedly felt that it was in the interest of all parties that necessary evidence be recorded at this stage itself. But the fact remains that the application for this very relief has been rejected on 6-11-1997. No appeal or revision was filed against that order. The order dated 6-11-1997 has therefore become final. Once such a relief has been refused and the refusal has attained finality, judicial propriety requires that it should not be allowed to be reopened. The High Court was obviously not informed of the order dated 6- 11-1997. Thus the High Court cannot be blamed. However, as that order has been brought to notice of this Court we cannot ignore it. The other factors which we keep in mind are the order dated 15-9- 2000 in Writ Petition No. 599 of 1998 and order dated 23-11-1998 in Writ Petition No. 1507 of 1998. By these orders it has been clarified by the High Court that the case has reached conclusion and liberty has been granted to the 1st respondent to raise all the points in a proceeding the 1st respondent may have to adopt if the criminal case is dismissed against him. The appellants are within their right to oppose the directions issued in the order dated 19- 10-2000. However in the long run this may prove disadvantageous to the appellants. It is possible that if the case is decided against the 1st respondent and the higher court feels that application to lead necessary evidence has been wrongly rejected, the whole case may have to be sent back for leading this evidence. We therefore asked the appellants whether they wanted to still oppose the directions 7 issued. We were told that they did. We therefore allow the appeal against the order dated 19-10-2000 and set aside the directions issued therein. The application filed by the 1st respondent will stand rejected.” (Emphasis is mine). This Court even while agreeing on the well known principles of exercise of power and grant of indulgence in matters arising from an application filed under Section 311 of the Code, finds it difficult to be in agreement with the petitioner, considering the circumstances that his earlier application stood dismissed as back as in the year 1996 and the petitioner slept over the matter for a period of 7 years before he filed a second application for leading evidence i.e. on 23.12.2003 and which has since been rejected by the learned court below in the light of the earlier rejection dated 31.07.1996. Even while liberty is afforded to litigating parties under the provisions of Section 311 of the Code for examination/recall/re-examination of witnesses and which has to be construed liberally by the courts but it certainly is not a premium to such of the parties who have slept over their rights. With the aforesaid observations the application is dismissed. S.Sb/- (Jyoti Saran, J.)