The complainant's failure to produce witnesses before the charge did not justify setting aside the discharge order of the accused petitioners.

By the Court.-This revision has been filed for quashing the order dated 14.06.2011 passed in Criminal Revision No. 69 of 2011 passed by Sessions Judge, Dhanbad, whereby he set aside the order dated 18.04.2011 passed by learned Judicial Magistrate, Dhanbad in C.P. Case No. 1003 of 2009.

2. It appears that the complainant-opposite party No. 2 filed a complaint petition against the petitioners alleging that they have committed an offence under Section 498-A of the I.P.C. It further appears that after cognizance, petitioners surrendered in the Court below and obtained bail. Thereafter, the complainant was ordered to produce evidence before charge vide orders dated 05.10.2010, 10.12.2010, 27.01.2011, 17.02.2011 & 16.03.2011, but inspite of the said directions, complainant did not produce any evidence before the charge. Order dated 16.03.2011 shows that the complainant was given last chance for producing evidence on 05.04.2011. It appears that on 05.04.2011, no witness produced by the complainant, hence learned Judicial Magistrate closed the evidence of complainant before charge and fixed the case on 18.04.2011 for hearing on the point of charge. Thereafter, on 18.04.2011, petitioners were discharged as no evidence adduced by the complainant before charge. The aforesaid order dated 18.04.2011 has been challenged in the Court of Sessions Judge, Dhanbad by filing Criminal Revision No. 69 of 2011. The said Criminal Revision was allowed vide order dated 14.06.2011, which is impugned in this case.

3. It is submitted by learned counsel for the petitioner that the learned Sessions Judge allowed the revision merely on the ground that from 05.10.2010 to 16.03.2011 some of the petitioners were on representation by filing application under Section 317 of the Cr.P.C. It is submitted that for examination of evidence presence of all the accused persons not necessary, if their physical presence is dispensed with by the Court. Thus, the absence of some of the petitioners put no embargo on the complainant from producing witness as directed by Court. Accordingly, it is submitted that findings of the learned Sessions Judge is against the law.

4. Sri Kalyan Banerjee, learned counsel appearing for the opposite party No.2, however, submits that the petitioners were required to appear on each and every date fixed in future till charge as per the order dated 06.09.2010. Under the said circumstances, there is no illegality in the impugned order.

5. Having heard the submissions. I have gone through the record of the case. From perusal of impugned order, I find that the learned Court below allowed the revision merely on the ground that some of the accused persons remained absent after grant of bail by ruing an application under Section 317, Cr.P.C. It is stated by learned Sessions Judge that the Court below instead of taking coercive action against the accused persons had discharged them by the impugned order, which according to him, is improper. From perusal of certified copy of order-sheet of the trial Court (Annexure-4), I find that the complainant did not oppose the applications rued by accused persons under Section 317, Cr.P.C. and the same has been allowed on different dates without any protest. It further appears from the order-sheet that the learned trial Court directed the complainant for production of witnesses before charge on several occasions and when the complainant did not produce witnesses a last chance given to him to produce evidence, thereafter prosecution evidence closed on 05.04.2011.

6. As per Section 273 of the Code of Criminal Procedure an evidence is required to be taken in presence of accused unless his personal attendance is dispensed with. As stated hereinabove by allowing the application under Section 317 of the Cr.P.C., learned trial Court dispensed with personal attendance of accused and allowed them to be represented through their lawyer. Thus, there is no legal impediment in production of witness by the complainant in absence