Heard the parties.

2. In this application, the petitioner has prayed for quashing of the order dated 28.9.2016, passed by the learned District & Sessions Judge-II, Jamshedpur, Singhbhum East in S.T. No. 280 of 2007, whereby and whereunder the application preferred by the petitioner to search out the original missing case diary along with the original documents has been rejected. A further prayer has been made for quashing of that part of the order dated 29.6.2008, by which the prosecution evidence has been ordered to be closed and the case has been fixed for examination of the petitioner and other accused persons under section 313 of Cr.P.C.

3. It has been submitted by Mr. P.P.N. Roy, learned senior counsel for the petitioner that in the original case diary some relevant documents are available, which also include a letter issued by the Estate Officer, Jamshedpur Notified Area Committee. Learned senior counsel submits that Investigating Officer of the case namely Birendra Prasad Yadav who has been examined as P.W-36 had stated about the original case diary as well as the original documents getting traceless and since such documents goes to the foundation of the dispute and are most essential for disproving the case of the prosecution, the application preferred by the petitioner deserves to be allowed. Learned senior counsel on the second prayer made by the petitioner has stated that the learned court below could not have closed the prosecution case on account of the witnesses-Sanjay Kumar Singh and Jagdish Yadav having not been produced by the prosecution and the learned trial court should have awaited their presence before closing the prosecution case. It has thus been submitted that both the applications having been rejected by the learned court below without considering the actual facts, the impugned order deserves to be quashed and set aside on both the counts.

4. Countering the arguments advanced by the learned senior counsel for the petitioner, Mr. Niazi, learned counsel for the informant, has stated that there has been an inordinate delay for the petitioner to file the application to search out the original documents as the same has been done to delay the disposal of the trial. He further submits that there has been a case and counter case and so far as counter case is concerned, the evidence in the same has already been closed. Learned counsel further submits that the defence was aware about the original case diary missing since long but no objection was ever raised by the defence either before the trial or during the trial. Adverting to the second leg of argument advanced by the learned senior counsel for the petitioner, Mr. Niazi submits that the application of the prosecution was rejected with respect to production of two prosecution witnesses and the prosecution has never challenged the impugned order dated 28.9.2016 and in such circumstances therefore the petitioner cannot be permitted to step into the shoes of the prosecution. Learned counsel furthering his argument has stated that the defence can always produce those two witnesses as defence witnesses but the defence is refraining from producing those witnesses as they do not want them to be cross-examined by the prosecution. It has been stated that as per Section 172(3) of the Code of Criminal Procedure, the prosecution is not bound to give the case diary to the defence as it can only be used for the purpose of corroboration. Learned counsel thus submits that having considered section 172(3) of Cr.P.C. as well as Section 145 of the Evidence Act, learned trial court was justified in dismissing the application preferred by the petitioner as well as that by the prosecution and since the petitioner has made a deliberate attempt to delay the disposal of the trial, the present application is liable to be dismissed with exemplary costs.

5. Before adverting to the submissions advanced by the learned counsel for the parties, it would be necessary to refer to the back