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 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 whetherthe prosecution has been 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 ). . .

(III ). . .

(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 ). "

( 3 ). The case of the applicant is that since the prosecution failed to examine the witnesses within two years from the date of framing of the charge on 4th October 1993. This case relates to an offence punishable with imprisonment for a period not exceeding three years. Consequently, irrespective of the fact that the prosecution has failed to examine all the witnesses within the said period the learned Metropolitan Magistrate was supposed to proceed to the next step provided by law for the trial of the case and in absence of any evidence there is no basis to examine the accused u/s 313 Crpc. It is contended that the examination-in-chief should not have been recorded on 2nd February 1999 and application moved by the accused/applicant should have been decided first. The learned Metropolitan Magistrate should have closed the evidence. It is submitted that in violation of the order of Supreme Court, the learned Metropolitan Magistrate recorded the statements and directed the defendant to cross-examine the witnesses.

( 4 ) LEARNED counsel appearing on behalf of the State could not dispute, that offence u/s 292 on first conviction is punishable "with an imprisonment which may extend up to two years and with fine which may extend to Rs. 2,000. 00 and in the event of second or subsequent conviction with imprisonment of either description of a term which may extend up to five years and also with fine which may extend to Rs. 5,000. 00. thus, the offence is not punishable with any offence exceeding Rs. 7 lakhs. "

( 5 ). It is apparent that an application was moved for closing the evidence to comply with the directions of the Supreme Court. The learned counsel for the State submits that the accused was apprehended at the spot and four witnesses had already been examined on 2nd February 1999. The learned trial court could be directed to proceed further to the next step provided by law for the trial of the case and the next step would be to cross-examine the witnesses: to record the statement u/s 313 Cr. PC; to hear the argument, and to pronounce the judgment.

( 6 ). Before proceeding further, it would be relevant to reproduce the relevant

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