IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32635 of 2007 MAN BAHAL GIRI Versus THE STATE OF BIHAR & ANR ----------- 5 12.10.2009 Heard learned counsel for the petitioner and the State. Petitioner is aggrieved by the order dated 6.7.2007, passed by the Additional District and Sessions Judge, Fast Track Court No. II, Saran at Chapra in Cr. Revision No. 233/2006/14/2007 by which he has refused to interfere with the order dated 19.9.2006, passed by the Judicial Magistrate, Ist Class, Chapra in Tr. No. 1456 of 2006 arising out of complaint no. 1130 of 1989. The complainant case is as follows: The complainant filed a demarcation case no. 76 of 1987-88 before the Addl. Collector who after giving notice to the parties appointed an Advocate Commissioner for the purpose of identifying demarcation and for fixing pillar on plot no. 696 and 695. The accused uprooted the pillars so fixed by the Advocate Commissioner. The complainant examined witnesses at the stage of inquiry on the basis of which cognizance was taken and charges were framed under sections 147, 323, 324, 434, 427 of the Indian Penal Code against the accused persons on 15.9.1994 . The prosecution examined all the witnesses and the statement thereafter was recorded on 14.9.1995. After closure of the defence evidence, the case was fixed for argument on 20.11.1996. The parties had not concluded their argument till 29.11.1997. On 12.12.1997 the accused filed representation petition which was rejected and warrant was issued against them. The two accused persons absconded. One of them, Shatrughan Giri could be arrested after 9 years - 2 - and was remanded to custody on 13.8.2006. The trial of the other accused persons was separated. The case was posted for argument again on 5.9.2006 after almost 10 years, when it was first fixed for argument in 1996 .The defence started its argument. In the midst, the complainant filed a petition under section 311 Cr.P.C. for examining the Advocate Commissioner and also for calling for the concerned record of measurement. The learned magistrate rejected the application stating that petitioner has not filed certified copies of the documents which he seeks to call for .Further more the said application has been filed at a belated stage. Against the order of the trial court the petitioner went in revision before the revisional court, which upheld the order of the trial court. The petitioner is aggrieved by the orders of the two courts. The petitioner has filed application for recalling and examining the Advocate Commissioner, who had participated in the demarcation as well as in fixation of pillar. Learned counsel for the petitioner submits that the courts have wide power under section 311 Cr.P.C. as well as under section 165 of the Evidence Act , for passing orders for production of documents which may be necessary for adjudication of the matter. There is no dispute that court can summon and examine or recall and re-examine any person, if his evidence appears to be just for decision of the case. The aforesaid provision also empowers the court to order production of any documents. In the instant case Dr. Mayanand Jha appearing for the State submits that the application under section 311 Cr.P.C. has been filed at a - 3 - belated stage, in order to cover the lacuna in the prosecution case. In this case, the complaint was filed in the year 1989. The witness was examined in the year 1994. The accused was examined in the year 1995 and the defence evidence was closed in the year 1997. The argument in the case started on 20.11.2996 and continued over a month. In the meantime some of the accused absconded and the case was split up in the year 2006 as one of the absconding accused Shatrughan Giri was apprehended and remanded on 13.8.2006. No petition under section 311 Cr.P.C. was filed either for recalling the witness or for production of the any document even after 12 years of closure of prosecution case, and 10.1/2 years of closure of defence case. Only when argument of defence started, prosecution filed a petition for calling of document after second time after gap of nearly 10 years. . The prayer of the petitioner cannot be acceded as only after the defence argument, it decided to file a petition for examining the Advocate Commissioner and for calling the documents. This petition as pointed out by the State has been filed for filling the lacuna in the prosecution case. Further more this was the second time when the argument in the case had started .The argument had earlier started first in the year 1996- 97 but the proceeding could not be concluded as the accused absconded. After apprehension of the accused and separation of trial, argument has again commenced in this case after almost ten years. The instant petition is hopelessly belated and is an example of utmost callousness on part of prosecution I do not find any merit in this application and the same is - 4 - dismissed. However, the petitioner will be at liberty to take recourse to section 391 Cr.P.C. at appropriate stage, if the circumstances, so arises. (Samarendra Pratap Singh, J) M.Rahman