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2008 DIGILAW 388 (CAL)

Pradip Dutta v. STATE OF WEST BENGAL

2008-04-09

Ashim Kumar Roy

body2008
JUDGMENT 1. AGGRIEVED by an order passed by the Learned Additional Sessions Judge, 2nd Fast Track Court, Alipurduar in connection with Sessions Case No. 81/06 rejecting his prayer for further cross-examination of three prosecution witnesses under Section 311 of the Code of Criminal Procedure, the petitioner moved the instant criminal revisional application. 2. MR. Himangshu De, the learned Senior Advocate, appearing in support of this application submitted that during the cross-examination of P. W. 4, Sri Manaranjan Das as well as during the cross-examination of P. W. 8 Ajit Das no contradiction was taken with reference to their statements made to the investigating Officer of the case P. W. 21 Samir Bhattacharjee. He further submitted similarly P. W. 21 Samir Bhattacharjee, the Investigating Officer of the case was not cross-examined as to the point of recovery of the alleged weapon of assault. According to Mr. De immediately upon discovery of such latches on the part of the defence lawyer, the petitioners moved an application under Section 311 of the Code of Criminal Procedure before the Learned Trial Court with a prayer for recalling those witnesses for further cross-examination but the learned Judge rejected their such prayer without any justifiable grounds and if the defence is not permitted to cross-examine those witnesses the same shall cause serious prejudice to the accused persons. In this connection Mr. De draws the attention of this Court to the application made on behalf of the defence being annexure 'a' to the instant criminal revisional application. On the other hand, Mr. Debobrata Roy, the learned Counsel appearing on behalf of the State vehemently opposed the prayer of the petitioner and submitted that this is nothing but an attempt to fill up the latches in the defence case and as the trial has already reached to its final stage and is about to be concluded the prayer of the petitioner cannot be allowed. 3. HEARD the learned Counsels appearing on behalf of the parties. Perused the materials on record as well as the impugned order. 4. THE impugned order shows that the Learned Trial Court rejected the petitioner's application under Section 311 of the Code of Criminal Procedure on following findings: (a) According to the defence both P. W. 4 and P. W. 8, declared hostile by the prosecution, could not have been cross-examined by mistake. 4. THE impugned order shows that the Learned Trial Court rejected the petitioner's application under Section 311 of the Code of Criminal Procedure on following findings: (a) According to the defence both P. W. 4 and P. W. 8, declared hostile by the prosecution, could not have been cross-examined by mistake. However, it appears from their cross-examination that the defence lawyer was well aware as to what facts they have deposed in their chief and as such it cannot be said that the defence discover those facts later on and accordingly allowing the defence lawyer to cross-examine those witnesses on such issue would amount to allowing the defence to fill up the lacuna in the defence case. (b) The P. W. 21, the Investigating Officer of the case was cross-examined at length on the point of recovery of weapon and thus further cross-examination is not at all necessary except for filling up the lacuna, if any, in the defence case. This is a criminal revision against an order passed by the Trial Court rejecting the petitioner's application under Section 311 of the Code of Criminal procedure. The said provision is read as follows; section 311 of the Code of Criminal Procedure. 311. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examined any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 5. THIS is an enabling provision whereby a Court is empowered amongst other to exercise its discretionary authority at any stage of the trial to recall a witness already examined and to re-examine him. The exercise of such power does not depend on the stage where the trial has reached. However, all that is necessary is this that such power be invoked in extreme cases where the exigencies of justice so required and should be used judicially and not as a matter of routine simply because such a prayer has been made either by the prosecution or by the defence. In no case such power be exercised to fill up the lacuna left by the prosecution or by the defence. In no case such power be exercised to fill up the lacuna left by the prosecution or by the defence. The power conferred thereunder can only be exercised only when the Court is satisfied that such examination on recall is essential for just decision of the case. 6. IN the instant Case, I do not find that the impugned orders suffers from any illegality or impropriety. Neither in the application made in the Court below nor in the submissions made before this Court it has been remotely suggested as to why the re-examination of those witnesses on recall is essential for just decision of the case, even when they were declared hostile and their non-examination would lead to failure of justice. This is a case where the trial is at the stage of argument and the prosecution witnesses viz. P. W. 4 and P. W. 8 whom the defence wanting to cross-examine on recall have been declared hostile and the only other witness P. W. 21, the Investigating Officer of the case was cross-examined at length and as such I am of the view that their re-examination on recall is no longer necessary for just decision of this case. Accordingly, I do not find any merit in this application and same stands dismissed. The trial in question relates to an occurrence of the year 2004 and is pending for argument and date for argument has already been fixed as such the trial Court is directed to conclude the trial as expeditiously as possible within a period of two months from the communication of this order without granting any adjournment to either of the parties unless it appears to the Learned Trial Court that such adjournment is necessary for ends of justice. The office is directed to communicate the aforesaid order to the learned Court below at once.