IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.9997 of 2018
Arising Out of PS.Case No. -46 Year- 2006 Thana -AURANGABAD COMPLAINT CASE District-
AURANGABAD

Ranju Devi daughter of Bechan Sao, resident of Kanker, P.S.- Navinagar, District-
Aurangabad.

…. …. Petitioner/s
Versus

1. The State of Bihar

2. Manoj Kumar Gupta, son of Vijay Prasad Gupta

3. Vijay Prasad Gupta son of Parmeshwar Sao

4. Gangia Devi wife of Vijay Prasad Gupta

5. Sunil Kumar Gupta son of Vijay Prasad Gupta

6. Blndhyachali Devi wife of Sunil Kumar Gupta
All are resident of Navanagar Nigahi, P.S.- Singrauli, Madhya Pradesh.

7. Shiv Prasad Gupta son of not Known to the Petitioner, resident of Kabul, P.S.-
Chatarpur, District- Palamu, Jharkhand.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Brajesh Kumar, Advocate
For the State : Smt. Pushpa Sinha, APP

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 18-08-2018

This application under Section 482 of the Code of Criminal

Procedure (for short ‘the Cr.P.C.’) has been filed by the petitioner for

quashing the order dated 29.11.2017 passed in Complaint Case

No.C46 of 2006 by which the learned Sub Divisional Judicial

Magistrate, Aurangabad has dismissed the petition filed by the

complainant on 18.04.2017.

2. The petitioner is complainant of Complaint Case No.46

of 2006 in which charge, inter alia, under Section 498A of the Indian
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Penal Code has been framed. She was examined on 18.07.2018 before

charge and on 20.07.2009 after charge. Similarly, witness no.2 was

examined after charge on 03.04.2010. The evidence on behalf of the

complainant after charge was closed on 07.11.2013. Thereafter, on

02.04.2014 statement of the accused were recorded under Section 313

of the Cr.P.C. and the case was adjourned for defence to produce its

witness. The defence produced two witnesses in order to prove their

innocence during trial whereafter, on 29.07.2016, the defence case

was also closed. Since then, the case was kept pending for argument.

It was only on 18.04.2017, an application was filed by the

complainant for her recall and recall of witness no.2 Bochan Sah for

further examination.

3. It was pleaded on behalf of the complainant that due to

inadvertence of the lawyer conducting the case certain important

documents could not be exhibited which were essential for proper

adjudication of the case.

4. The prayer made on behalf of the complainant in her

application under Section 311 of the Cr.P.C. was contested by the

accused persons. It is pleaded on their behalf that nine years have

elapsed since the date of filing of the complaint. The witnesses

examined during trial have deposed at length and after cross-

examination they were discharged. Their evidence was recorded more
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than seven years ago and, thereafter, the defence had also adduced its

evidence and the defence case was also closed. It was further

contended that the application under Section 311 of the Cr.P.C. cannot

be allowed for filling up lacuna of the prosecution case.

5. Having heard both the parties, the learned Sub Divisional

Judicial Magistrate, Aurangabad, vide impugned order dated

29.11.2017 rejected the prayer of the petitioner and directed her to

argue the case on merit.

6. Being aggrieved by the aforestated order dated

29.11.2017, passed by learned Sub Divisional Judicial Magistrate,

Aurangabad, the instant application has been filed by the petitioner

under Section 482 of the Cr.P.C.

7. It is contended by the learned counsel for the petitioner

that the learned Sub Divisional Judicial Magistrate, Aurangabad has

failed to consider the fact that some important documents having

bearing on merits of the case could not be marked due to inadvertence

of lawyer conducting the case. It is further contended that merely

because certain witnesses were already examined on behalf of the

defence, the court below should not have rejected the application

preferred by the petitioner under Section 311 of the Cr.P.C.

8. I have heard learned counsel petitioner and carefully

perused the record.

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9. The application filed in the court of Sub Divisional

Judicial Magistrate, Aurangabad, has been brought on record as

annexure-2 to the present application. From perusal of the application,

I find that the pleadings are quite vague. Neither the provision of law

under which the application was filed by the petitioner was mentioned

nor it has been averred as to which document could not be proved

during trial. The powers conferred under Section 91 of the Cr.P.C for

summoning of documents are enabling in nature, aimed at arming the

court or any other officer-in-charge of a police station concerned, to

enforce and to ensure the production of any document or other things,

necessary or desirable for the purpose of any investigation, inquiry,

trial or other proceedings under the Cr.P.C., by issuing a summons or

a written order to those in possession of such material. As far as

Section 311 of the Cr.P.C. is concerned, the same enables the court to

summon any person as a witness or examine any person in attendance,

though not summoned as a witness, in order to find out truth to render

just decision of the case. If exigency of the situation arises that there

is requirement to recall any witness, it is true that the stage at which

the case is pending would be of no consequence. However, in the

instant case, since a vague petition was filed by the petitioner, in the

opinion of this Court, the learned Magistrate committed no error in

rejecting the same specially when the complaint case is pending
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before the court since 2006.

10. The application, being devoid of any merit, is dismissed.

(Ashwani Kumar Singh, J)
Md.S./-

AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 23.08.2018
Transmission 23.08.2018
Date