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Radhey Shyam Sharma v/s State of Bihar

    Cr.Misc. 56439 Of 2006

    Decided On, 05 January 2007

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE ABHIJIT SINHA

    For the Appearing Parties: Ajay Kumar Thakur, Jharkhandi Upadhayay, Advocates.



Judgment Text

(1.) Heard Sri Ajay Kumar Thakur, the learned counsel for the petitioner and Sri Jharkhandi Upadhaya, the learned A. P. P. for the State.

(2.) The petitioner who happens to be the complainant of Complaint Case No. C-20 of 1984 (Tr. No. 1959/06) pending in the Court of Sri Tribhuwan Nath, Judicial Magistrate, Ist Class, Muzaffarpur, is aggrieved by order dated 8-12-2006 passed therein whereby the learned Magistrate has rejected the petition filed by the complainant praying therein for issuance of fresh summons or in the alternativ

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e, a warrant of arrest against non-appearing witness Mithlesh Kumar Singh at the address of his present posting on the grounds that summons had already been issued to the said witness, that in a complaint case it is the duty of the complainant to produce his witnesses and that there had been a direction by this Court in Cr. W. J. C. No. 40/2006 to conclude the trial at the earliest.

(3.) The facts of the case may be noticed with relative brevity. Impleading the Vice Chancellor, Bihar University, as accused No. 1 and his Personal Assistant as accused No. 2, the complainant filed the complaint petition, alleging inter alia, that the two arrayed accused had arranged a meeting of the Bihar University Syndicate on 13-6-1984 at Birganj (Nepal) and in course thereof the accused had purchased two type-writers of Japanese origin and had smuggled the same into India. It is further alleged that the accused procured cash memo of a fictitious firm, namely, M/s. Desh Bandhu Traders, Mehsaul, Sitamarhi, an alleged dealer of Customs Goods which indicated that the price of the two typewriters was Rs. 3070 /- and duty charged thereupon was Rs. 3070/- thereby totalling an amount of Rs. 7140/-. It was further alleged that in fact no duty on the typewriters was paid and yet a sum of Rs. 7140/- was withdrawn from the Bihar University funds in the name of P. P. Singh, P. A. to accused No. 1 by cheque dated 16-8-1984 drawn on State Bank of India, Bihar University Branch against the said cash memo.

(4.) It appears that at the enquiry under Section 202 Cr. P. C. apart from the deposition of the complainant on S. A. four other witnesses were examined and a report was also called for from the Customs Authority whereafter processes were issued against the accused. It further appears that the witnesses were again examined at the stage of framing of charge whereafter the charges were framed. It will not be out of place to mention here that most of the witnesses examined were official witnesses who had to depose in their official capacity and included the officials of the Bank, Customs and the University and accordingly summons were issued to them after framing of charge.

(5.) It has been submitted on behalf of the complainant petitioner that so far four witnesses had been examined including the complainant and only witness Mithilesh Kumar Singh, who at the relevant time was functioning as cashier in the Bank and was required to prove the withdrawal of money from the Bank, remained to be examined.

(6.) The primary grievance of the petitioner herein is that although the summons issued to the said witness was returned unserved with an endorsement that he was presently posted as Branch Manager, State Bank of India, P. B. Branch Urmila Towers, Dhanbad yet no steps were taken by the Court, notwithstanding the prayer of the petitioner, to have it served on the witness at his present land correct address.

(7.) Admittedly, summons had not been sent to the witness at the correct address. Where the Court's assistance is sought for securing the attendance, as has been done in the instance case, it is planned that ordinarily the same should be provided by the issuance of process, on a proper application for summons to witness and in the event of non-compliance therewith, for warrant, it would be the functioning of the Court to compel the attendance. This is not to say that the Court has no discretion in the matter, but ordinarily in such a situation, it would be an error in declining its aid or its power to compel attendance when express resort is made to the Court.

(8.) In the given situation I am unable to accept the reasoning assigned by the learned Magistrate for rejecting the petition. It is true that the case has lingered on for 22 years and there is an order of this Court for expeditious disposal. "Expeditious disposal" does not mean that the evidence, whether of prosecution or defence, should be cut short and judgment be pronounced without examining the material witness. The procedural law is required to be adhered to. The learned Magistrate has fallen in error in not issuing summons at the correct address of the witness and that too when a petition seeking help of the Court in securing attendance of the witness was sought in specific terms.

(9.) Accordingly, the impugned order cannot be sustained and has to be set aside. The learned Magistrate will now issue the summons to the witness concerned at the new and correct address in an effort to secure his attendance and if unsuccessful then he shall resort to other coercive measures and dispose of the case as expeditiously as possible due regard being had to the period of protracted litigation.

(10.) The petition is allowed with a direction to the learned Magistrate to follow the observations made above. Petition allowed
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