S. N. KAPOOR, J. (ORAL)

( 1 ) THIS petition u/s 397/401 read with Section 482 Criminal Procedure Code is directed against the order dated 2nd February 1999 passed by a Metropolitan Magistrate. There is no dispute that the applicant was facing trial for offence u/s 292 read with Section 34 Indian Penal Code committed on dated 30th October 1988. The accused was arrested on the same day at the spot. Charge was framed on 4th October 1993. It appears from the order sheets of various dates that the prosecution failed to examine any witness before 2nd February 1999. This is so despite the fact that the learned Metropolitan Magistrate repeatedly issued warrants against the witnesses to procure their attendance when police witnesses were served but they did not appear.

( 2 ) ON 21st November 1998, an application was moved by the accused for discharging the accused in the light of the order passed by the Supreme Court in Raj Deo Sharma Vs. State of Bihar, 1998 Cri. LJ 4596. The relevant portion of the judgment reads as under:

(I) "in cases where the trial is for an offence punishable with imprisonment fora period not exceeding seven years, whether the accused is injail or not, the Court shall

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