The Patna High Court dismissed an application under Section 482 CrPC filed by a private informant seeking summoning of additional witnesses. The Court held the petitioner lacks locus standi and the petition is not bona fide due to the 24-year delay.
The application to summon additional witnesses was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.19714 of 2013
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Abhay Kumar Jha S/O Late Ram Bhusan Jha R/O Village- Nawada, Police Station- Bahera, District- Darbhanga
.... .... Petitioner
Versus
.... .... Opposite Parties
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER
2 09-05-2014 Heard learned counsel for the petitioner and learned counsel for the State.
The petitioner is informant of Bahera P.S. Case No. 1 of 1989 registered for the offences punishable under Sections 342, 323, 379 and 386 read with Section 34 of the Indian Penal Code for an incident which is alleged to have taken place on 20.10.1988. The police investigated the case and submitted charge sheet on 7th of March, 1989. The Magistrate concerned took cognizance of the offence. Since cognizance was also taken for the offence under Section 307 of the Indian Penal Code, the case was committed to the Court of Sessions for trial in the year 1989 itself. It appears
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from the record that the police mentioned name of 11 persons in the column of witnesses to be examined in Court. The Sessions Court framed charges under the aforesaid penal provisions. In course of trial, 9 witnesses were examined by the prosecution. Out of them, PW1 to PW5 were declared hostile. The Investigating Officer of the case has been examined as PW8 and PW9 is a formal witness. The informant and one other witness are said to have supported the prosecution case. On 27th of June, 2012, the petitioner filed an application in Sessions Trial No. 215 of 1989 for summoning five persons to be examined on behalf of the prosecution as additional witnesses in course of trial. The statements of those five persons were not recorded in course of investigation by the police. The learned Adhoc Additional Sessions Judge, Benipur vide his order dated 22nd of February, 2013 rejected the prayer of the petitioner. Against the aforesaid order dated 22nd of February, 2013, the petitioner has filed the present application under Section 482 of the Code of Criminal Procedure.
Learned counsel for the petitioner has submitted that the police went in collusion with the accused persons and deliberately failed to record statement of those five witnesses in course of investigation.
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Apparently, the submission made by the petitioner is misconceived.
At the first instance, the informant of the case has no locus standi in the matter. The trial of a sessions case is held by the Public Prosecutor or by Additional Public Prosecutor. Section 301 (2) of the Code of Criminal Procedure gives limited right to a private person to assist the Public Prosecutor in course of trial and after the permission of the Court to submit written arguments after the evidence is closed in the case. Indisputably, the petition filed in the Court below was not filed by the Public Prosecutor or by the Additional Public Prosecutor. The same was even not endorsed or moved by the Public Prosecutor and in that circumstance, the petition filed by the petitioner who is informant of the case was not even sustainable in law.
Even if, this court gives a go-bye to the technicalities of law and adjudicates the case on merits, then also, this Court finds that the petition filed in the Court below was not a bona fide petition. As noted above, the occurrence had taken place in October, 1988 and the chargesheet was filed in the Court in March, 1989 but the prayer to summon some other witnesses has been made for the first time in 2012 i.e. after lapse of 24 years of the alleged occurrence. The petitioner had raised no grievance in
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respect of partial investigation prior to the filing of the petition in 2012.
It is true that Section 311 of the Code of Criminal Procedure and Section 165 of the Evidence Act invest the Court with a wide discretion to call and examine anyone as a witness, if the court is of the opinion that his examination is necessary for a just decision of the case. The power vested in the Court is discretionary and has to be exercised with great care and caution. It cannot be exercised to fill up lacuna in the prosecution case or for any other oblique purpose.
For the reasons discussed hereinabove, I find no merit
in the present application. The application is dismissed.
(Ashwani Kumar Singh, J)
Jagdish/-
3 issues framed by the court
Whether an informant of a case has locus standi or bona fide interest to approach the court under Section 482 CrPC to summon additional witnesses after a lapse of 24 years.
Whether the court's discretionary power under Section 311 CrPC can be exercised to fill up lacuna in a prosecution case filed decades ago.
Whether the present application for summoning additional witnesses has merit.
2 provisions across 1 enactments
Abhay Kumar Jha
The State Of Bihar
Shankar Kumar Jha
Arun Kumar Jha
Ashwani Kumar Singh
As recorded by the court registry
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