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2004 DIGILAW 386 (CAL)

KARTICK NAIYA v. STATE OF WEST BENGAL

2004-06-15

GORACHAND DE

body2004
GORACHAND DE, J. ( 1 ) AFTER hearing the learned Counsel of both sides and on perusal of the materials-on-record, it appears that on the basis of the self-same incident canning P. S. Case Nos. 5 and 6, dated 6. 6. 1980 were started and separate charge-sheet was submitted in both the cases. Both the cases were also committed to the Court of "sessions and by an order of this Hon'ble Court passed on 14. 6. 1988, a direction was issued to the effect that both the cases were to be heard and disposed of by the same Court of Sessions one after another. ( 2 ) IT appears that in Canning P. S. Case No. 5 dated 6. 6. 80, the evidence is closed and it is pending at the argument stage. As regards the Canning p. S. Case No. 6, dated 6. 6. 80, on the basis of which a case Leing S. P. 1 (1) of 1990 was started, is pending at the stage of hearing of argument. ( 3 ) IT appears from the materials-on-record that prior to the close of the prosecution evidence, a petition was filed before the learned Sessions Court on 9. 7. 2003 praying for examination of 10 prosecution witnesses alleging that they were vital witnesses. It also appears that without disposing of that application, the trial Court proceeded to pass an order closing the prosecution evidence and opted to examine the accused persons under Section 313 of the Code of Criminal Procedure and thereafter on 1. 8. 2003 passed the impugned order rejecting the prayer as made by the defecto-complainant on 9. 7. 2003. Ground given in the said order is that sufficient opportunity was given to the prosecution to produce those witnesses but witnesses were not produced. Accordingly, the Court had no other alternative but to close the evidence and then proceeded with the examination of the accused persons under Section 313 of the Code of Criminal Procedure. ( 4 ) THE instant application is filed under Section 401 as well as under section 482 of the Code of Criminal Procedure. It1s a cardinal principle of law that Section 401 has no independent application bereft of Section 397 of the Code. Under sub-section (2) of Section 397 of the Code, power of revision is barred in respect of an interlocutory order. It1s a cardinal principle of law that Section 401 has no independent application bereft of Section 397 of the Code. Under sub-section (2) of Section 397 of the Code, power of revision is barred in respect of an interlocutory order. So, it may be argued that against the impugned order being an interlocutory order, no revision lies and accordingly it is barred under Section 397 and consequently also under section 401 of the Code. It is needless to mention that the test of an interlocutory order depends on the question whether the order finally disposes a case or not. This impugned order practically does not dispose of the case finally and accordingly, it is to be treated as an interlocutory order and as such the power of revision cannot be exercised in respect of the impugned order. Accordingly, Section 401 of the Code has no manner of application in this case. ( 5 ) NOW it comes for consideration whether under Section 482 of the code, this Court is competent to pass any order on the impugned order. It is also a settled principle of law that if there is a specific bar in respect of any order underthe provision of the Code, inherent power cannot be exercised to rectify the defect and so from this stand point the interlocutory order passed by the trial Court cannot be interfered with. ( 6 ) IT appears from the record, as it is indicated hereinabove, that an application for examination of the remaining 10 vital witnesses was filed on 9. 7. 2003 i. e. before passing of the order of closing the prosecution evidence, not to speak of the examination of the accused persons under Section 313 of the Code of Criminal Procedure. In the impugned order, the learned sessions Judge considered that the petition filed on 9. 7. 2003 cannot be considered as the case was fixed for argument. But it is not clarified that the petition filed on 9. 7. 2003 was required to be taken into consideration before closure of the prosecution evidence. It is also to be mentioned that the trial court did not consider the provision under Section 311 of the Code which is applicable in a case of this nature. But it is not clarified that the petition filed on 9. 7. 2003 was required to be taken into consideration before closure of the prosecution evidence. It is also to be mentioned that the trial court did not consider the provision under Section 311 of the Code which is applicable in a case of this nature. ( 7 ) IT is true that the defecto-complainant has no role to play in Sessions trial excepting the authority to help the prosecution in course of trial within the meaning of Section 301 of the Code. The order-sheet of the trial Court is not produced before this Court but it can be presumed that the application dated 9. 7. 2003 was brought on record for having on getting clearance of the prosecution, Or in other word, the prosecution also thought it fit to bring the ' application on record for the purpose of examination of the remaining vital witnesses in this case. The conduct of the prosecution in this regard is not clear, specifically when the other materials of the trial Court are not produced. But it is specifically stated in the instant application that no summons were served on those witnesses for which they did not get any opportunity to appear before the Court as witnesses. If that be the position, it is undoubtedly an abuse of the process of the Court in respect of which the Court of law cannot be a silent spectator under the provision of the Code. A duty has been cast upon the Public Prosecutor to see that a trial is proceeded lawfully and the role of the Public Prosecutor is required to be impartial in all respect. The examination of the vital witnesses is undoubtedly necessary for proper and impartial trial and the Public Prosecutor is to take effective steps for production of such witnesses for the sake of proper trial of a case. If it is found that appropriate actions were not taken for production of vital witnesses, then it was within the competency of the trial Court to take effective steps for their production for the sake of fair trial. If it is found that appropriate actions were not taken for production of vital witnesses, then it was within the competency of the trial Court to take effective steps for their production for the sake of fair trial. Departure from such opportunity is to be construed as an abuse of the process of the Court, and to prevent such abuse and for the purpose of securing the ends of justice this Court is required to exercise its inherent power under Section 482 of the Code. ( 8 ) SO, after due consideration of the materials-on-record and circumstances, it appears that the trial Court did not consider this aspect and erroneously passed an order without ascertaining whether effective steps were taken for production of vital witnesses on behalf of the prosecution. The impugned order is accordingly set aside by directing the trial Court to reconsider the petition filed on 9. 7. 2003 after giving opportunity of hearing to both the parties and to dispose of the said application on merit as well as on law keeping in view the provisions of Section 311 of the Code. ( 9 ) WITH this comment, this application is disposed of with a direction upon the trial Court to dispose of the said application dated 9. 7. 2003 with utmost promtitude in the manner indicated hereinabove and to proceed with the case in accordance with law thereafter. ( 10 ) IT is clarified that I have not gone into the merits of the case and the trial Court shall be at liberty to proceed with the case on its merits. Since the cases are pending for long, a direction is issued upon the trial court to dispose of the cases as directed by this Hon'ble Court earlier in accordance with law as early as possible. ( 11 ) LET a copy of this order be sent to the trial Court forthwith. Criminal section is directed to supply urgent xeroxed certified copy of this order to the parties, if applied for. S. K. G.