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2003 DIGILAW 107 (CAL)

Minati Mukherjee v. State of West Bengal

2003-03-10

Sujit Barman Roy

body2003
JUDGMENT Sujit Barman Roy, J. Heard the learned Counsel for both sides. 2. By this petition petitioner has challenged the order dated 12.8.2002 passed by the learned Additional Sessions Judge, Asansol in Sessions Case No. 60 of 2002. 3. It appears from the impugned order that on 12.8.2002 when the date was fixed for examination of the accused persons under section 313 of the Code, the Additional P.P.-in-Charge of the prosecution of the case filed a petition praying for issuing summons to, two witnesses under section 311 of the Code. The witnesses are the Medical Officer, who held post mortem examination over the dead-body of the deceased and also the Investigating Officer of the case. As prosecution failed to produce these two witnesses for their examination as prosecution witnesses though repeated chances were given to them, the learned Trial Court closed the evidence for the prosecution and wanted to examine the accused under section 313 Cr.P.C. and at that stage on behalf of the prosecution the aforesaid petition was moved. For obvious reason the accused party resisted the said petition. 4. It further appears from the impugned order that as many as eight chances were given to the prosecution to produce these two witnesses and yet prosecution failed to produce these two witnesses for their examination. In these circumstances, the Court expressed the view that it did not want to drag the matter any more and on that basis rejected the prayer of the prosecution to issue summons to the aforesaid two witnesses and proceeded to examine the accused persons under section 313 Cr.P.C. 5. It is true that there were some lapses on the part of the prosecution. If he fails to produce these two witnesses before the Court on its own, prosecution could have made such prayer long back to issue summons. Instead of doing that, prosecution preferred to remain silent for a long time and at the stage of examination of accused persons under section 313 of the Code this petition was made. Undoubtedly prosecution is guilty of dilly dallying the matter. But at the same time it should be the concerned of everyone to do justice. If these two important witnesses are not examined as PWs. and evidence is closed without examining them, it may cause injustice either to this or that party. Undoubtedly prosecution is guilty of dilly dallying the matter. But at the same time it should be the concerned of everyone to do justice. If these two important witnesses are not examined as PWs. and evidence is closed without examining them, it may cause injustice either to this or that party. It is not unknown to the Trial Court that the Code of Criminal Procedure contain relevant provisions for compelling these two witnesses to attend the Court and for their examination as witnesses. The Trial Court did not exhaust that procedure. It does not look nice for the Trial Court to take advantage of the lapses on the part of the prosecution and to help the accused in this regard. Ultimate concern of the Trial Court should be to do justice. That being so, it is absolutely needless to emphasize the importance of these two witnesses both from the prosecution as well as defence point of view. 6. In the circumstances, the impugned order is set aside. The learned Trial Court is directed to issue summons upon said two witnesses to compel them to attend the Trial Court for their examination as PWs. and thereafter only to proceed with the examination of the accused afresh and dispose of the case in accordance with law. 7. With the aforesaid direction, this petition is disposed of. 8. Let the xerox certified copy of this order be supplied to the learned Counsel for the petitioner forthwith. Petition disposed of with direction.