Posted On by &filed under Bombay High Court, High Court.


Bombay High Court
Narayan S/O Ganpati Warambhe vs State Of Maharashtra on 22 September, 2000
Equivalent citations: 2001 CriLJ 527
Author: R Batta
Bench: R Batta, P Brahme


JUDGMENT

R.K. Batta, J.

1. Heard, Rule. With the consent of the learned advocate for the petitioner and learned A.P.P. rule in writ petition No. 235/2000. is made returnable forthwith and with their consent the matter is heard forthwith along with the writ petitions Nos. 75/00 and 273/00. In these writ petitions common questions arise for consideration and as such it is proposed to dispose of the same by common judgment.

2. First of all it is necessary to enumerate the brief facts which lead to the filing of these writ petitions.

In Criminal Writ Petition No. 75/2000, the petitioner was charge-sheeted for offences under Sections 7, 13(1)(D) read with Section 13(2) of Prevention of Corruption Act. In respect of an incident of acceptance of bribe of Rs. 500/- on 11-12-1990. The charge-sheet was filed on 24-12-91 and it was registered as a Special Criminal Case No. 30/91. The charge was framed on 18-1-1994. The matter was fixed for prosecution evidence for the first time on 8-7-1999. On 12-7-1999 the application was filed by the petitioner for closure of the prosecution case. This application was rejected by the trial Court vide order dated 14-12-1999. This order is subject-matter of this writ petition.

In Criminal Writ Petition No. 235/2000 the police had filed charge-sheet against petitioner for offences under Sections 7, read with Section 13(2) of Prevention of Corruption Act, 1988 for acceptance of bribe of Rs. 108/-on 30-10-1990. It appears that the charge-sheet was filed somewhere in the year 1992 and the charge was framed on 27-7-92. No evidence has been recorded in this case. The state had filed an application on 6-6-2000 requesting grant of opportunity to the prosecution to examine witnesses in the interest of justice. The title of this application shows that it was filed under Section 311 of Criminal Procedure Code. The trial Court vide order dated 12-6-2000 allowed the said application and granted two months time to the prosecution to examine witnesses. This order is subjectmatter of challenge in this writ petition.

In Criminal Writ Petition No. 273/2000 the petitioner was charge-sheeted for offences under Section 161 of I.P.C. and under Section 5(10)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 for accepting bribe of Rs. 100/- on 22-3-1986. The charge-sheet was filed on 24-12-88. The charge was framed against the petitioner on 9-11-1990. No evidence has been recorded in this matter. On 24-9-1999 the application was filed by the petitioner for closing the prosecution case. The said application was rejected vide order dated 7-7-2000, this order is subject matter of challenge in this writ petition.

3. Learned advocate Shri M. R. Daga argued Criminal Writ Petition Nos. 75/2000 and 273/2000 on behalf of the petitioner and learned Advocate Shri N. Dangre, argued Criminal Writ Petition No. 235/2000 for the petitioner. Learned A.P.P. argued all the petitions on behalf of State.

4. Relying upon the judgment of the Apex Court in Rajdeo Sharma v. State of Bihar(2), (1999) 6 Scale 150 : (1999 Cri LJ 4541) as also the main judgment in Rajdeo Sharma v. State of Bihar, it has been urged that the charges in Criminal Writ Petition No. 75/2000 were framed way back on 18-1-1994 and charges in Criminal Writ Petition No. 273/2000 were framed way back on 9-11-1990, but the prosecution did not lead any evidence within 2 years of the framing of the charge as directed by the Apex Court in main Rajdeo Sharma’s case and as such the prosecution case was required to be closed, but the trial Court erred in granting further opportunity to the prosecution to lead evidence.

5. In sofar as the clarification given by the Apex Court in Rajdeo Sharma v. State of Bihar(2) (1999 Cri LJ 4541), (supra) it is urged that the period of one year which has been allowed by the Apex Court in the said clarification has to run in continuation with the period of two years from the date of framing of the charge.

6. Learned Shri Dangre also made similar submission and submitted further that the clarification given by the Apex Court in Rajdeo Sharma v. State of Bihar (2) (supra) in relation to reading of direction contained in paragraph 17(3) in main Rajdeo Sharma’s case to the effect that for very exceptional reasons to be recorded and in the interest of justice, further time could be granted beyond the aforesaid limit, is not applicable to the case of the petitioner. He also urged that even the period of one year which is granted by Apex Court in Rajdeo Shama v. State of Bihar (2) (1999 Cri LJ 4541) would be over on 14-2-2000 even if the said judgment is held to be prospective and as such there was no question to entertain the application of the prosecution for grant of time to produce evidence. It was also urged by him that the said application was filed by the prosecution under Section 311 of Criminal Procedure Code, the scope of which is limited to cases where evidence is already recorded, but for justifiable reasons the Court exercise discretion under Section 311 of Criminal Procedure Code to adduce further evidence, but in any case powers under Section 311 of Criminal Procedure Code cannot be exercised when no evidence at all has been led by the prosecution.

7. Learned A.P.P. appearing on behalf of the State urged before us that in these cases the prosecution was never given any opportunity by the Court to lead evidence and the cases were not fixed for trial and as such the prosecution cannot be held to be responsible for not leading evidence under the circumstances. According to him the prosecution must get clear opportunity of two years for leading evidence and in cases where no such opportunity is given, the prosecution cannot be held liable for not leading evidence. The prosecution in such cases is required to be given opportunity to lead evidence and if after giving that opportunity the prosecution does not lead that evidence or delays the leading of the evidence, then only the directions given in the main Rajdeo Sharma v. State of Bihar can be applied. He also urged that the prosecution in these cases is in no manner responsible for not producing evidence as no such opportunity was given by the Court. He placed reliance on the judgment of the Apex Court in Constitution Bench in Abdul Rehman Antulay v. R. S. Naik, as also the judgments in Rajdeo Sharma’s case (1998 Cri LJ 4596).

8. In respect of application in Writ Petition No. 235/2000 it was urged that though the said application was labelled as filed under Section 311 of Criminal Procedure Code, yet what the prosecution sought was an opportunity to examine prosecution witnesses in the interest of justice and in fact the incorrect labelling of the application cannot go against the prosecution and the learned A.P.P., therefore, urged that the writ petitions are liable to be rejected.

9. In the light of the above mentioned facts and the controversy, we shall first refer to the position of law on the subject.

10. In the main case of Rajdeo Sharma v. State of Bihar (1998 Cri LJ 4596) (supra) the Apex Court had after referring to a number of authorities including A.R. Antulay v. R.S. Naik (1992 Cri Lj 2717) (supra) noticed that the legal position adumbrated by Court in A.R. Antulaye’s case that the right to speedy trial flows under Article 21 and it encompasses the stages right from the date of registration of the F.I.R. and onwards remains unaltered. The Apex Court supplemented the proposition laid down by the Constitution Bench in Antuley’s case with the following directions (Para 16 of 1998 Cri LJ 4596) :

(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not within the said period and the Court can proceed to the next step provided by law for the trial of the case.

(ii) in such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial Court shall release the accused on bail forthwith on such conditions as it deems fit.

(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the Court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the Court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the Court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time-limit.

(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no Court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by Clauses (i) to (iii).

(v) Where the trial has been stayed by orders of the Court or by operation of law, such time during which the stay was in force shall be excluded from the aforesaid period for closing the prosecution evidence. The above directions will be in addition to and without prejudice to the directions issued by this Court in “Common Cause” A Registered Society v. Union of India (1996 Cri LJ 2380) as modified by the same Bench through the order reported in “Common Cause” A Registered Society v. Union of India (1997 Cri LJ 195).

In Rajdeo Sharma v. State of Bihar (2) (1999 Cri LJ 4541) the Central Bureau of Investigation had approached the Apex Court for clarification on the above directions by contending: (1) that the said directions were only prospective, and (2) that the time taken by the Court on account of its inability to carry on day to day trial due to pressure of work be excluded. The Apex Court has clarified by reiterating that no fixed outer time limit for conclusion of all criminal proceedings in a case has been fixed by them, nor the Apex Court has gone counter to the decisions of the Constitution Benches in A.R. Antulay v. R.S. Naik (supra) and Kartar Singh v. State of Punjab, . In view of this, it is necessary to make reference to the main judgment in Rajdeo Sharma v. State of Bihar wherein there is discussion by the Apex Court in respect of the case of A.R. Antulay v. R.S. Naik (supra) and Kartar Singh v. State of Punjab (supra). The Apex Court noted down the observations made in A.R. Antulay v. R.S. Naik (1992 Cri LJ 2717) (supra), in paragraphs 85 and 86 of the judgment of A.R. Antulay v. R.S. Naik. In A.R. Antulay v. R. S. Naik Constitution Bench of the Apex Court had recalled the observations made in Champalal Punjaji Shah, wherein it was observed (Para 55 of 1992 Cri LJ 2717):

In cases where the quashing of charges/convictions may not be in the interest of justice, it shall be open to the Court to pass such appropriate orders as may be deemed just in the circumstances of the case. Such orders may for example, take the shape of order for expedition of trial and its conclusion within a particular prescribed period, reduction of sentence when the matter comes up after conclusion of trial and conviction and so on.

In paragraph 86 of A.R. Antulay v. R.S. Naik, Apex Court laid down certain propositions meant to serve as guidelines but forewarned that the propositions are not exhaustive. It was also pointed out that it was also not possible to lay down any hard and fast rules. A brief reference to the said guidelines shows that right to speedy trial flowing from Article 21 has been recognised so that the accused is not subjected to unnecessary or undue long trial. The question posed in the said directions by the Apex Court was – who is responsible for the delay? In guideline No. 5, it was laid down that while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the Court concerned, prevailing local conditions and so on – what is called, the systemic delays, it was pointed that though it is true that it is obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. It was also observed that the prosecution should not be allowed to become a persecution. But when does prosecution becomes prosecution, again depends on the facts of a given case. The Apex Court then observed that : Ultimately, the Court has to balance and weigh the several relevant factors – ‘balancing test’ or ‘balancing process’ and determine in each case whether the right to speedy trial has been denied in a given case. It was held that primarily it was for the prosecution to explain the delay.

11. In Kartarsingh v. State of Punjab (1994 Cri LJ 3139) (supra) the Constitution Bench quoted with approval the balancing approach referred to A. R. Antulay’s case and observations contained in paragraphs 86 and 92 of the judgment in A.R. Antulay’s case (1992 Cri LJ 2717) (supra), wherein besides other reasons for delay the crowded dockets in the file of the Court are also referred. In this background Apex Court in the main Rajdeo Sharma v. State of Bihar (1998 Cri LJ 4596) (supra) had supplemented the propositions laid down by the Constitution Bench in Antulay’s case with directions which have been already quoted in paragraph 10.

12. As we have already pointed out, C.B.I. sought clarification in respect of Nain Rajdeo Sharma’s case (1998 Cri LJ 4596), which clarification was given by the Apex Court in Raj deo Sharma v. State of Bihar (2) (1999 Cri LJ 4541) (supra).

13. It is pertinent to note that in the majority judgment of the Apex Court, it was laid down that no trial could be allowed to be prolonged indefinitely due to lethargy of prosecution agency or State machinery (Emphasis added). By way of clarification it was observed that the discretion of the Court in granting further time (exercisable “for very exceptional reasons to be recorded and in the interest of justice”) as for direction No. (iii) in paragraph 17 of the main judgment can be imported in respect of Direction No. (i) as well. If the trial gets postponed on account of pendency of any appeal or revision filed against any interim order, even though there was no order of stay it is open to the trial Court to reckon that period also within the ambit of Clause (iv) in paragraph 17 of the main judgment.

14. On the question of systemic causes for delay, the Apex Court has laid down that absence of presiding officer in a trial Court (either on account of the physical disability or due to the delay in taking over the charge of the Court) is a valid cause which disables the prosecution from adducing evidence.

(Emphasis added).

15. On the question of the post of the Public Prosecutor falling vacant or nonavailability of the public prosecutor, it was laid down by the Apex Court that when a public prosecutor demits office due to any eventuality there would arise some interval for his successor to take charge and in such eventuality the tenure of office of a particular person as a public prosecutor expires he shall continue to hold office and function as public prosecutor until his successor takes Charge from him. If the office of a public prosecutor falls vacant on account of any other reason, a period of 3 months shall be excluded from the periods fixed under directions (i) and (iii) of paragraph 17 of the main judgment to enable the State Government to appoint a public prosecutor to that office.

16. On the submissions of the learned Additional Solicitor General regarding clarification sought that direction No. (i) and (iii) of Paragraph 17 of the main judgment should be prospective from the date of judgment in the main Rajdeo Sharma’s Case (1996 Cri LJ 4596), it is necessary to refer the observation made by the Apex Court in para 15 of the judgment in Rajdeo Sharma v. State of Bihar (2) (1999 Cri LJ 4541) (supra) :

15. Shri Altaf Ahmad, learned Additional Solicitor General submitted that unless directions No. (i) and (iii) are made prospective from the date of judgment in Rajdeo Sharma prosecution in many pending cases would be jeopardized. He pointed out that on the date of the said judgment the period concerned stood expired in many cases. We have bestowed our consideration on the said submission and we find force in it. Possibility of miscarriage of justice resulting therefrom must be averted. We are therefore, inclined to include a rider that an additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in the main appeal, and the Court concerned would be free to grant such extension if the Court considers it necessary in the interest of administration of criminal justice. As we suspended the operation of the judgment from 14-5-1999 till today the said time of suspension will stand excluded from the aforementioned additional period of one year.

17. What has been laid down by the Apex Court in para 15 of this judgment is complete answer to the first submission made by learned advocate for the petitioners. It was represented by the learned Additional Solicitor General that on the date of main judgment in the Rajdeo Sharma’s case (1998 Cri LJ 4596) (supra) period referred in the said judgment already stood expired in many cases and if the judgment in the main Rajdeo Sharma’s case is not held operative from prospective date of the said judgment, it will jeoparadize the prosecution pending in many cases. After bestowing consideration the Apex Court found force in the said submission, and held that possibility of miscarriage of justice resulting therefrom must be averted. Accordingly, the Apex Court added a rider to, the effect that additional period of one year’ can be claimed by the prosecution in respect of the prosecutions which were pending on the date of judgment in mind appeal (Emphasis supplied). Of course, the Apex Court also laid down that since the judgment in the main Rajdeo Sharma’s case was suspended from 14-5-1999 till the date of clarification the said time of suspension will stand excluded from the aforementioned additional period of one year.

18. Admittedly, in all three writ petitions the criminal cases were pending on the date of main judgment rendered by the Apex Court in Rajdeo Sharma’s case (1998 Cri LJ 4596). The judgment in Rajdeo Sharma’s case was rendered on 8-10-98 and the prosecution could seek extension of one year from that date. From 14-5-99 to 22-9-99., the period stood excluded in terms of the clarification judgment of the Apex Court in Rajdeo Sharma’s case (2). The application in the case involved in Writ Petition No. 75/ 2000 was filed on 12-7-1999 and the same was decided on 14-12-1999, this period obviously has to be excluded. In writ petition No. 273/2000 the application was filed on 24-9-99 and decided on 7-7-2000, the period also has to be excluded. Therefore, so far as Writ Petition No. 75/00 and 273/00 are concerned, the prosecution was still within its limits to seek extension. However, what is pertinent to note is that in none of the three cases which are involved in these three writ petition the prosecution case was fixed for evidence. If the prosecution case is not fixed for evidence, how could the prosecution lead the evidence, is a question to be examined. In this connection besides observation of the Apex Court already referred, we shall make further reference to observations added by the Hon. Justice M. Shrinivasan, J. His Lordship endorsed agreement with the majority judgment and has also expressed views by separate order. In paragraph 21, His Lordship has made following observations :

21. Thus, the Constitution Bench had in Antulay’s case itself contemplated an order to conclude the trial within a fixed time in appropriate cases. In fact, in the judgment in the main appeal in the present case, the Court has not fixed any time limit for the conclusion of trial. As such, the Court has only laid down guidelines for closing the prosecution in certain circumstances. There is a difference between fixing a time limit for the disposal of a trial and fixing time limit for the prosecution to complete its evidence. A perusal of the guidelines contained in the main judgment would themselves show that there is no hard and fast rule applicable to every case, irrespective of facts and circumstances thereof. If the delay is not due to any fault of the prosecution, it is open to the prosecution to place the relevant facts before the Court and seek further time for producing its evidence. It is clear from the last part of Clause 3 in paragraph 16 of the judgment. Even though, there is no express exception similar to that in Clause 1 in paragraph 16, the same position will obtain. The judgment in the appeal cannot be understood as punishing the prosecution and preventing the same from adducing evidence even when it is not responsible for the delay.

(Emphasis supplied)

19. In A.R. Antulay v. R.S. Naik (1992 Cri LJ 2717), the Apex Court had laid down certain guidelines in paragraphs 85 and 86 which is quoted in the main Rajdeo Sharma’s case, wherein it was pointed out that the propositions were not exhaustive, as it was difficult to foresee all situations, nor it is possible to lay down any hard and fast rules. In the said judgment one of the considerations referred for adopting balancing test or balancing process was stated to be workload of the Court, as also crowded dockets on the file of the Court. At this stage, it is necessary to refer to a Division Bench of this Court in Criminal Writ Petition No. 1642/1999 (2000 (3) Cur Cri R 704 (Bombay) and Writ Petition No. 1742/1999 wherein this aspect has been dealt with in paragraphs 23 to 28 which are as under :

23. However, that, by itself, would not mean that the prosecution can take any time or as much time as it wants without respecting right to speedy trial flowing from Article 21 of the Constitution of India. If there be any genuine difficulty in the path of the prosecution, certainly, it can be looked into and given due weightage.

24. For this reason, it was urged before, us that for quite some time there was only. one Judge in the City Sessions Court to deal with the C.B.I. By very nature, these cases1 involving conspiracy, perjury, fabrication of evidence etc. have to be invested in a clever and conspicuous manner which would take its own time to unearth its task at first place and involve too long drawn exercise to prove the same in a Court of law. The prosecution therefore has to have sufficient time to complete its task.

25. On top of that, if there is a paucity of personnel which would include a Judge to decide the case of the prosecutor, on behalf of the State, obviously, the time if required will have further to be extended because it is not in anybody’s hand to provide either more number of Judges or prosecutors overnight. Even otherwise, out of the sanctioned strength of 60 Judges in the City Civil Court, there are presently only 49 Judges in the said Court and that has added to the paucity of Judges being available in adequate numbers to deal with the pending cases.

26. Even if that is possible, there would be a number of other reasons including that of non availability of Advocates or witnesses which again would lead to delay in completing the trial.

27. The petitioners have produced copies of the Roznama showing who have been responsible for the delay. It is the Presiding Judge who had, at all times, adjourned the matters from day one to other for a period of 3 to 4 months. In our opinion, if there is only one Judge or at the most two Judges dealing with so many cases, if they do not adjourn the matters in this manner, it would be impossible for them to proceed with each of the cases for whole day. They have to adjourn the matters and repeat the exercise almost every day to manage the Board effectively and postpone those cases where immediate trial is not possible for a sufficient long time and deal with those cases on hand when the trial can commence.

28. This being a proper method for managing the Court or exercise is expressed to be handling the task of the docket management, the Ld. Judge cannot be faulted for the same.

20. The Apex Court had in the main judgment in Rajdeo Sharma’s case referred to the procedure of Criminal Procedure Code and had observed that same is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. (Emphasis supplied) and that Section 309(1) of Criminal Procedure Code supports the above view as it enjoins expeditious holding of proceedings and continuous examination of witnesses from day to day.

21. The Apex Court in clarification in Rajdeo Sharma’s case has pointed out that no trial could be allowed to be prolonged indefinitely due to lethargy of the prosecution agency or the State machinery and the fact that there is delay on account of absence of Presiding Judge in a Trial Court has been taken as a valid cause which disables the prosecution from adducing evidence; that if the delay is not due to any fault on the part of the prosecution, it is open to the prosecution to place the relevant facts before the Court and seek further time for producing its evidence; and that the judgment in the appeal cannot be understood as punishing the prosecution and preventing the same from adducing evidence even when it is not responsible for the delay. Therefore, if the prosecution is not given any opportunity to lead the evidence and the prosecution case is not fixed for evidence by the Court, the prosecution by no means can be held responsible for delay.

22. In the cases under consideration this is what exactly has happened. It is submitted by the learned advocate for the petitioners in W.P. 235/2000 that though in the order passed by the Trial Judge, it is mentioned that the case was never fixed for adducing evidence it was in fact fixed for evidence on 26-12-99. Even then it cannot be said in this case that two years clear time was granted to the prosecution to lead evidence.

23. In view of the above the extension granted by the Trial Court in permitting the prosecution to lead evidence cannot be faulted with since the prosecution cannot be held to be responsible for causing delay in the trial.

24. The only point which remains to be considered now is the scope of Section 311 of Criminal Procedure Code in Writ Petition No. 235/2000. In this respect the Apex Court in the clarification in Rajdeo Sharma’s case has laid down in para 9 that the power of the Court as envisaged under Section 311 of Criminal Procedure Code, has not been curtailed, nor in the decision in Antulay’s case or in Kartarsing’s case (1994 Cri LJ 3139) such powers has been restricted for achieving speedy trial. The Apex Court has in other words laid down that even if the prosecution evidence is closed in compliance with the directions contained in main judgment, it is still open for the prosecution to invoke the powers of the Court under Section 311 of Criminal Procedure Code. It has been clarified by the Apex Court that if the evidence of any witness appears to the Court to be essential to the just decision of the case, it is duty of the Court to summon and examine or recall or re-examine any such person. The contention putforth by the learned Advocate Shri Dangre on behalf of petitioner is that under Section 311 of Criminal Procedure Code, the prosecution cannot be permitted to lead entire evidence which otherwise stood closed, and that it is only that witness which appears to be essential for the purpose of just decision of the case that discretion under Section 311 of Criminal Procedure Code can be exercised.

25. In this respect the learned A.P.P. urged before us that the application was wrongly labelled under Section 311 of Criminal Procedure Code, but in fact it was an application for grant of opportunity to lead evidence as the prosecution had not been granted opportunity to lead evidence at any stage of the trial, since the prosecution case was never fixed for recording of evidence. The contention of learned A.P.P. in the facts and circumstances and in the context is well founded. Thus, the question which remains to be considered is whether the prosecution can lead evidence by having resort to Section 311 of Criminal Procedure Code if the prosecution case stands closed in terms of the directions of the Apex Court in Rajdeo Sharma’s Case ?

26. Section 311 of Criminal Procedure Code has two parts. First is discretionary and the second is mandatory. There is difference between the two parts. Whereas under first part the Court has discretion but under second part of the Court is under a duty to examine the witnesses. In order to exercise the discretion by the trial Court under Section 311 of Criminal Procedure Code either under the first part or in the second part, it would be necessary for the trial Court to know what is the prosecution leads evidence. The prosecution must therefore lead evidence, laying down the foundation for the case, and it is only then that the trial Court would be in a position to exercise discretion either under the first part or under the second part, where the discretion has to be exercised for just decision of the case, on the ground that the evidence of a witness is essential for the said purpose. Of course, the exercise of discretion under Section 311, Cr. P.C. would depend on facts and circumstances of each case and no strait-jacket formula can be laid down. Nevertheless, it may be broadly stated that in cases where the prosecution case stands closed without adducing any evidence, after appropriate opportunity is given to it, in terms of Rajdeo Sharma’s case, in our opinion resort cannot be had to lead entire evidence of prosecution under Section 311 of Criminal Procedure Code, unless a very exceptional case with sound justification is made out. However, if the prosecution has already led evidence and after that the case stands closed on account of the directions in terms of Rajdeo Sharma’s case, resort can be had to Section 311 of Criminal Procedure Code and the Court may permit the examination of witnesses which are considered essential for the just decision of the case.

27. For the aforesaid reasons, we do not find any merit in the writ petitions. Rule in Writ Petition No. 75/2000, 235/2000 and 273/2000 is discharged.

28. Heard Shri Daga, learned Advocate for the petitioner in W.P. 273/2000 who seeks stay of this judgment for approaching Apex Court. We do not find any reason or ground to stay the judgment, hence request is rejected.

29. Stay of the proceedings granted in Writ Petition No. 273/2000 stands vacated.


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