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2002 DIGILAW 411 (CAL)

SAKTIPADA DOLUI v. MADHABI DOLUI

2002-06-27

MALAY KUMAR BASU

body2002
MALAY KUMAR BASU,J. ( 1 ) THIS revisional application is directed against the order dated 13th January, 1997 passed by the learned trial Magistrate in C. R. No. 37 of 1985. By this order the learned Magistrate allowed a petition of the complainant under Section 246 (6) of the Cr. P. C. to examine his remaining witness when the evidence of the prosecution had already been over and the case was fixed for examining the accused persons under Section 313 of the Cr. P. C. The defence filed a petition opposing the said petition of the complainant under Section 246 of the Cr. P. C. but the learned Magistrate did not accept the defence contention and allowed the complainant's petition and fixed a date for his further evidence. ( 2 ) BEING aggrieved by that order of the learned Magistrate the defence has preferred the present revisional application challenging the said order as erroneous, illegal and unsustainable and praying for an order not only setting aside the impugned order of the learned Court below but also quashing the entire criminal proceeding in question. ( 3 ) MR. Hussain, learned Advocate appearing on behalf of the petitioner in this revisional application, contends that there has been inordinate delay in the matter of completion of trial of this case, it having commenced in 1985 while the impugned order was passed in 1997 and in support of his contention he has referred to a decision reported in 1991 Cri LJ 922. In this reported decision, their Lordships of the Apex Court have taken the view that Section 540 of the old Criminal Procedure Code which corresponds to Section 311 of the new Code, should not be invoked by the Court to fill up the lacuna in the prosecution case, because it is not the duty of the Court to make good the omission of the prosecution and unless the Court is satisfied that in the interest of justice it is necessary to invoke the said extraordinary power, it will not embark upon such an exercise. But on a careful perusals of the facts and circumstances of the present case and the nature of the impugned order, I find that this ruling has no manner of application to them. Here the impugned order was not passed by the Court under Section 311 of the Cr. But on a careful perusals of the facts and circumstances of the present case and the nature of the impugned order, I find that this ruling has no manner of application to them. Here the impugned order was not passed by the Court under Section 311 of the Cr. P. C. The Court passed the order allowing the complainant's petition for examination of one remaining witness under Section 246 (6) of the Cr. P. C. and this decision of the Apex Court is of no avail here. ( 4 ) THE question is if the order passed under the said section of the Code by the learned Court below can be said to be tenable. It appears that under Section 244 of the Cr. P. C. the complainant is to examine his witnesses as named in the list attached to the complaint. Under Section 245 of the Cr. P. C. it has been enjoined that the witnesses as named in the complaint shall be examined and after their examination is over, the Court will consider such evidence and will then consider the question of framing of charge on the basis of such evidence and after the, charge is framed, Section 246 of the Cr. P. C. will come into operation and the charge will be read over and explained to the accused and thereafter if he expresses the wish that any witness is to be recalled and cross-examined by him, then that will be done and thereafter the evidence of any remaining witness for the complainant shall be taken. In the present case, it appears that following this procedure the learned trial Court gave a chance to the prosecution to examine his remaining witnesses and accordingly such witnesses were examined on behalf of the complainant and after that was over, the Court fixed a date for examination of the accused persons under Section 313 of the Cr. P. C. Therefore, it goes without saying that the prosecution was given the full scope for examining its witnesses as par the list attached to the complaint and thereafter that stage of examination of remaining witnesses having been over, the Court proceeded to the next step as enshrined under Section 313 of the Cr. P. C. Therefore, it goes without saying that the prosecution was given the full scope for examining its witnesses as par the list attached to the complaint and thereafter that stage of examination of remaining witnesses having been over, the Court proceeded to the next step as enshrined under Section 313 of the Cr. P. C. Therefore, the prayer that was made by the prosecution at the late stage for examining his remaining witnesses could not be said to be timely or in accordance with the provisions of the law. On the other hand, the provisions of Section 245 (3) of the Cr. P. C. as amended by this State will be applicable and in the absence of any special reason made out by the prosecution to the effect that it will not be in the interest of justice to consider the case of the prosecution in the light of the evidence already adduced by it, such prayer for adducing the evidence of any remaining witness will not be legal or reasonable. Therefore, in view of the specific provisions of Sections 244, 245 and 246 of the Cr. P. C. discussed above, it will not be lawful for the Court to accept the petition of the complainant for examining any additional witness at the stage when the evidence of all his witnesses had already been completely taken and the case was fixed for examination of the accused persons under Section 313 of the Cr. P. C. In that view of the matter, the impugned order is found to be erroneous and be set aside. ( 5 ) IN the result, the revisional application be allowed. ( 6 ) SINCE the matter has become pretty old, the learned trial Court is directed to proceed with the trial of the case from the stage, where he was before passing of the impugned order, as expeditiously as possible and preferably within a period of three months from the date of communication of this order. ( 7 ) OFFICE is directed to communicate this order to the learned trial Court forthwith.