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2002 DIGILAW 388 (CAL)

GEEVARGHESE MATHEWS v. STATE OF WEST BENGAL

2002-06-17

DEBIPRASAD SENGUPTA

body2002
D. P. SENGUPTA, J. ( 1 ) PRESENT revisional application is directed against an order dated 10. 4. 2002 passed by the learned Judicial Magistrate, 3rd Court, Sealdah in a proceeding being G. R. Case No. 1521 of 1996. ( 2 ) IT appears that in the aforesaid proceeding after examination of the prosecution witnesses filed a apetition on 2. 4. 2002 praying for re-examination of the doctor, i. e. P. W. 4. The accused persons were examined under Section 313 of the Code of Criminal Procedure on 9. 4. 2002. On 10. 4. 2002 the petition filed by the prosecution praying for re-examination of the doctor (P. W. 4) was taken up for hearing. The learned Magistrate by the impugned order allowed the prayer of the prosecution as he was of the view that the doctor should be recalled for the ends of justice for re-examination with reference to injury report. The next day, i. e. on 11. 4. 2002 was fixed by the learned Magistrate for examination of the doctor (P. W. 4 ). ( 3 ) ON 11. 4. 2002 the doctor (P. W. 4) could not be examined as a prayer was made on behalf of the accused persons for adjournment as they intended to move the higher Court challenging the order dated 10. 4. 2002. The learned Magistrate was not inclined to allow such prayer for adjournment in view of the earlier direction of this Court to conclude the trial within 3 months, but he ultimately granted time to the defence till 13. 5. 2002. ( 4 ) IT is the contention of the petitioners' learned Advocate that after examination of the accused persons under Section 313 Cr. P. C. is over, the learned Magistrate is not justified in recalling the doctor (P. W. 4) for re-examination by invoking the provision of Section 311 Cr. P. C. In support of his contention the learned Advocate of the petitioners relies on a judgment of the Hon'ble Supreme Court reported in (1989) 4 Supreme Court Cases - 436 (Mir Mohammad Omar and Others vs. The State of W. B. ). But in my considered view the said judgment has got no manner of application in the present case. The provision of Section 278 Cr. But in my considered view the said judgment has got no manner of application in the present case. The provision of Section 278 Cr. P. C. has been dealt with in the said judgment and the facts and circumstances of the said case is totally different from the present case. The learned Advocate refers to paragraph 16 of the said judgment, from which it appears that in the said case prosecution had closed its evidence and the accused was examined under Section 313 Cr. P. C. The prosecution did not make any prayer before the learned Trial Judge for recalling P. W. 34 for further examination. But at that stage the High Court granted liberty to the prosecution to file an application before the Trial Judge for re-examination of P. W. 34. In such circumstances it was held by the Hon'ble Supreme Court that there was no justification for the High Court for giving liberty to the prosecution to file an application for re-examination of P. W. 34 and this was totally uncalled for. ( 5 ) IN the present case circumstances are quite different. In the present case the prosecution made a prayer for recalling the doctor (P. W. 4) for his re-examination with reference to the injury report. The learned Magistrate on being satisfied that his (P. W. 4) further examination was necessary for the just decision of the case, allowed the prayer of the prosecution and fixed the following day (11. 4. 02) for examination of the doctor. ( 6 ) THE learned Advocate appearing for the opposite party submits that the order passed by the learned Magistrate allowing the prayer of the prosecution to recall P. W. 4, does not suffer from any illegality. It is further submitted that in view of the provision of Section 311 Cr. P. C. the learned Magistrate is empowered to recall and re-examine any person at any stage of the proceeding if his evidence appears to be essential to the just decision of the case. ( 7 ) I have heard the learned Advocates of the respective parties. In my considered vies the impugned order does not suffer from any irregularity. P. C. the learned Magistrate is empowered to recall and re-examine any person at any stage of the proceeding if his evidence appears to be essential to the just decision of the case. ( 7 ) I have heard the learned Advocates of the respective parties. In my considered vies the impugned order does not suffer from any irregularity. It is obligatory on the part of the Court to summon a witness in case his evidence appears to be essential for the just decision of the case and the power of the Court, which is to be exercised for the just decision, can be exercised at any stage of the proceeding, if bona fide. When an essential document is overlooked by the prosecution, it is the duty of the Court to have it admitted in evidence by recalling a witness at any stage of the proceeding. By the impugned order the learned Magistrate allowed the prayer of the prosecution to recall the doctor for further examination with reference to the injury report. The defence in such a situation will not be prejudiced in any way as in that event they will be entitled to further cross-examination of the said witness (P. W. 4) on that point. ( 8 ) IT further appears that earlier a revisional application was moved by the petitioner praying for quashing of the proceeding which was numbered as CRR 1693 of 2000. The said application was finally disposed of by this Court on 17. 12. 2001. By consent of both the parties this Court directed the learned Magistrate to dispose of the proceeding expeditiously, preferably within a period of three months from the date of communication of the order. It is also noticeable that the learned Trial Magistrate made his honest effort to conclude the proceeding within that period. But the present petitioner has again come up before this Court challenging an order dated 10. 4. 2002 only for dragging the proceeding. Such practice, in any considered view, should never be encouraged. The present revisional application accordingly fails and the same is dismissed. The learned Trial Magistrate directed to conclude the trial within a period of 2 months from the date of communication of the order without granting any unnecessary adjournment to either of the parties. 2002 only for dragging the proceeding. Such practice, in any considered view, should never be encouraged. The present revisional application accordingly fails and the same is dismissed. The learned Trial Magistrate directed to conclude the trial within a period of 2 months from the date of communication of the order without granting any unnecessary adjournment to either of the parties. Let an urgent Xerox certified copy of the order be given to the learned Advocate appearing for the petitioner at an early date, if applied for. Appeal fails.