N. Dhinakar, C.J.

1. A petition was filed by the prosecution under Section 311, Cr PC before the Judicial Magistrate, 1st Class, Garhwa for the purpose of examining the two witnesses, namely the informant and his wife who allegedly suffered injuries in the case. The trial Magistrate dismissed the petition and aggrieved by the said order the State preferred a revision and the Addl. Sessions Judge, Fast Track Court No. Ill, Garhwa allowed the revision holding that the learned Magistrate passed the order in haste. Accordingly, permission was granted by the Addl. Sessions Judge to the prosecution to examine two witnesses and aggrieved by the said order of the learned Sessions Judge, the present revision is filed by the accused, Ravi Bhushan Dubey and Pankaj Dubey in the case.

2. Learned counsel appearing for the petitioners submits that the prosecution having failed to produce two witnesses in-spite of several opportunities given to it was not justified in filing a petition under Section 311, Cr PC to examine those two witnesses after the prosecution case was closed and therefore, the Sessions Judge was not right in allowing the petition filed to summon two witnesses for their examination.

3. I have heard Sri I.N. Gupta, learned APP appearing for the State and perused the materials placed before me.

4. At the outset, I may have to say that the Sessions Judge was not justified in allowing the petition filed by the prosecution under Section 311, Cr PC for summoning two witnesses. It could be seen that the occurrence had taken place in the year 1998. The final report was filed before the learned Magistrate and taken on file and numbered as G.R. Case No. 697/1998. The charges were framed against the petitioner under Sections 323 and 324 of the IPC on 18.12.1999.

After the framing of the charges two witnesses, namely, Dinesh Kumar Dubey and Santu Dubey were examined as PWs 1 and 2 on 5.12.2000 and 7.3.2001 respectively.

Thereafter the prosecution went into slumber and did not produce any witness.

The case was pending before the learned Magistrate on 7.3.2001 for the examination of the other witnesses. On 12.6.2001 summons were issued at the request of the prosecution arid accordingly, summons were sent. The hearing date was fixed as 6.2.2001. On that day the witnesses were not produced by the prosecution and therefore, the case stood adjourned from time to time. As the prosecution witnesses were not produced by the prosecution on summons being issued by the Court, the trial Court issued bailable warrant and thereafter non-bailable warrant but to no success. Finally as a last chance the prosecution was directed to produce witnesses on 20.3.2003 but the prosecution did not produce any witness even on that date. The learned Magistrate thereafter closed the prosecution case on 17.4.2003. After the closure of the prosecution on 17.4,2003 the prosecution came out with a petition under Section 311, Cr PC on 25.3.2003 praying that two witnesses have to be examined which was rejected and in revision it was reversed by the Sessions Court.

5. The facts narrated and the dates given above show that the prosecution in-spite of several opportunities given to it did riot produce the witnesses and allowed the case to hang before the learned Magistrate from the year 1998 till 2003. The prosecution came out with an explanation for non-examining the above two witnesses by stating that they were old and suffering from illness. I am unable to understand as to how the persons who were old in the year 1998 could have become younger in the year 2003 for them to be summoned and examined as witnesses in the case at a later point of time. It is also difficult to accept the explanation given by the prosecution that the two witnesses were ill, since, if the two witnesses were actually ill and that they could not have been produced before the Court either on summon or on the basis of non-bailable warrant, the prosecution only ought to have not only informed the Court o