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2011 DIGILAW 171 (CAL)

Hemanta Mondal v. STATE OF WEST BENGAL

2011-02-04

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. Mr. Prabir Kumar Mitra, learned Advocate is appearing on behalf of the petitioners. MR. Tapan Dutta Gupta, learned Advocate, teamed Advocate is appearing for the Opposite Party No. 2 and MR. S. K. Mallick, learned Advocate is appearing for the State. 2. Irked by the repeated defeat to bring the witness namely Bikash Chandra Biswas, the learned Additional District and Sessions Judge, Fast Track 1st Court, Haldia closed evidence of the prosecution on 18.02.10 in Sessions Trial Case No. 38/2008. The de facto complainant challenged that order in revision and obtained stay order from this Court. On the date i.e. 16.03.2010 fixed for examination of the accused persons who are petitioners herein, the learned Court adjourned the case for further hearing to 16.04.2010 on the ground that the de facto complainant of the case informed the Court that all the proceedings of the trial have been stayed by this Court in a revisional application. On 18.05.2010, a letter of an Advocate of this Court was presented on behalf of the prosecution showing stay of further proceedings of the trial for six weeks, which, eventually expired before 18.05.2010. Therefore, the learned trial Court decided to proceed further with the trial and allowed the prayer of the prosecution under Section 311 of Cr. P. C for examination of Dr. Bikash Chandra Biswas on 04.06.2010. On 04.06.10, Dr. Biswas was examined, cross-examined and was dischargea. Some documents were also admitted into evidence and marked exhibits on behalf of the prosecution on that date, the learned Public Prosecutor was conducting the case on behalf of the prosecution prayed for closure of the prosecution evidence. Accordingly, the learned trial Court closed the prosecution case and fixed on 15.06.2010 for examination of the accused persons under Section 313, Cr.P.C. On 15.06.2010, the learned Public Prosecutor (newly appointed) had taken out one application under Section 311 of the Code praying for examination of five other witnesses for the purpose of just decision of the case. The learned trial Court. Subsequently fixed 30 06.2010 for hearing of the matter together with the written objection to be filed by the accused persons (present petitioners). The learned trial Court. Subsequently fixed 30 06.2010 for hearing of the matter together with the written objection to be filed by the accused persons (present petitioners). On 30.06.2010, the learned Court upon hearing of the learned Counsels for both the parties as well as appreciating the evidence already recorded, found that for the purpose of the just decision of the case, examination of those five witnesses is necessary although the names of those witnesses have not been mentioned in the charge-sheet as witnesses. He allowed the prayer under Section 311, Cr. P. C. The accused persons challenged the legality, validity and propriety of that order dated 30.06.2010 in this revisional application. The point to be decided is whether the order dated 30.06.2010, which has been impugned in this revisional application under Section 482, Cr. P.C read with Section 401 of the Code is sustainable in law. 3. Mr. Prabir Mitra, learned Advocate appearing on behalf of the petitioners submits that although Section 311 of the Code provides wide power to a trial Court to summon any material witness or examined persons present in Court at any stage of any enquiry, trial or other proceedings under the Code that discretionary power should be exercised sparingly and cautiously, so that it may not affect the interest of justice as well as may not amounting to affording the parties seeking exercising of such power may fill up lacuna in their case. MR. Mitra takes me to the orders dated 07.12.2009, 08.01.2010, 18.02.2010, 16.03.2010, 18.05.2010 and 04.06.2010 passed by the learned trial Court. 4. He submits that the learned trial Court become frustrated with the manner in which the prosecution carried on the trial. The learned public Prosecutor in charge of that trial on behalf of the prosecution never acted diligently and made prayer after prayer according to his whim and even during the period the stay order passed by this Court was prevailing. He takes to me to the order no. 04.06.10 and submits that on that date, after examination and cross-examination of Dr. Bikash Chandra Biswas as P.W. 9, the learned Public Prosecutor in Charge of the case on behalf of the prosecution prayed for closure of the prosecution case and as such, the learned trial Court closed the prosecution case on that date fixing 05.06.2010 for examination of the accused persons under Section 313, Cr. Bikash Chandra Biswas as P.W. 9, the learned Public Prosecutor in Charge of the case on behalf of the prosecution prayed for closure of the prosecution case and as such, the learned trial Court closed the prosecution case on that date fixing 05.06.2010 for examination of the accused persons under Section 313, Cr. P. C. On 15.06.2010, another prayer under Section 313, Cr. P. C was made on behalf of the P. P for examining five witnesses, whose names have not been mentioned as witnesses in the charge-sheet. Therefore, once the Court closes the cross-examination of the witnesses for the prosecution and fixe dates for examination of the accused under Section 313 Cr. P.C, it cannot allow a prayer under Section 311, Cr. P.C for examination of further witnesses on behalf of the prosecution. 5. Mr. Mallick, learned Advocate appearing for the State submits that there is no impediment for the Court to issue summons on the material witnesses at any stage of the Trial for just decision of the case. He draws attention of this Court also to the fact that after examination of the P. W. 9 Dr. Bikash Chandra Biswas, the learned Advocate conducting case on behalf of the prosecution was substituted by another learned Advocate, who upon consideration of the materials collected by the I. O. as well as the evidence recorded so far by the Court found it necessary to get five more witnesses examined reference of which was given already by the P. W. 3, the victim. Therefore, once the trial Court finds that for the just decision of the case some witnesses are required to be summoned, the Court has no option but to summon them. Therefore, there is no illegality or irregularity in the order. 6. Mr. Tapan Dutta Gupta, learned Advocate appearing on behalf of the Opposite Party No. 2 submits that Section 311 Cr. P. C provides a Trial Court with wide power to call any person at any stage of trial for the purpose of just decision of the case. There is no impediment for the Court in exercising that power even once the case of the prosecution is closed on the prayer of the learned P. P. The Court can exercise this power even before passing of judgment. Therefore, it cannot be said that the learned trial Court exceeded its jurisdiction and exercised the power irrationally and illegally. There is no impediment for the Court in exercising that power even once the case of the prosecution is closed on the prayer of the learned P. P. The Court can exercise this power even before passing of judgment. Therefore, it cannot be said that the learned trial Court exceeded its jurisdiction and exercised the power irrationally and illegally. To ascertain the true nature of power and scope under Section 311, Cr. P.C, the provisions of Section 165 of the Evidence Act is to be read also. In other words, the provisions of Section 311, Cr. P.C and Section 165 of the Evidence Act are to be read together to know the extent of discretionary power of trial Court to call witness or produce documents in a trial for the purpose of just decision. Since it is a discretionary power, there cannot be any doubt as indicated by Mr. Mitra, the Court should be very cautious in exercising it so that it cannot be used as a sword in place of shield. 7. However, we should not be oblivious of the principle that the requirement of just decision does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are two aspect of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something unexpectedly. If Section 311 of the Code is read minutely, it can well be understood that new evidence can well be admitted only when it is essential for a just decision of the case. This discretionary power can be exercised at any stage even after the closure of the prosecution and defence case. It is not correct to say that as simply because once prosecution case is closed on the prayer of the learned P. P., the Court is denude of exercising its power under Section 311, Cr. P. C. So, in the case of Section 165 of the Evidence Act also. It depends on the facts and circumstances of each case and materials forthcoming before the Court in course of trial. Here, in this case after examination and cross-examination of P.W.9, Dr. Biswas. P. C. So, in the case of Section 165 of the Evidence Act also. It depends on the facts and circumstances of each case and materials forthcoming before the Court in course of trial. Here, in this case after examination and cross-examination of P.W.9, Dr. Biswas. On 04.06.2010, the application under Section 311 of the Code filed by the learned P. P. who was newly appointed in this case on that date for examination of the five witnesses namely-- 1) Dr. Ansurnan Panda 2) Superintendent, Haldia S D Hospital 3) Manager, Labbaik Nujrsing Home 4) Dr. R. Kanjilal and 5) Ahibhusan Panda, an eye-witness. 8. Therefore, it cannot also be said that the prosecution wanted to fill up lacuna at a belated stage by making a prayer for examination of five other witnesses. The learned trial Court upon consideration of the contention of both the parties as well as upon consideration of the evidence so far recorded by the Court found that for the just decision of the case, those witnesses are required to be summoned as witnesses. Once, the trial Court has exercised such a discretion, the Court is bound to take evidence by way of examination and cross-examination of those persons as the new evidence appears to him essential to the just decision of the case. As the section stands, there is no limitation on the power of the Court arising from the stage to which the trial may have reach provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. 9. Herein, in this case, I reiterate upon examination of P.W.9, the prosecution prayed for examination of other witnesses because from the evidence of P.W. 9, the prosecution came to know that the victim was treated by Dr. Ansurnan Panda on the same date at 9.35 p. m. and was admitted in the hospital. 10. Naturally, Ansurnan Panda appears to be an essential witness in the cass wherein charges under Section 325/326 have been framed against the accused persons. The Superintendent of Haldia S. D. Hospital is required to be examined for the purpose of proving admission of the victim in the S. D. Hospital, Haldia, The evidence of Manager, Labbaik Nursing Home and Dr. Naturally, Ansurnan Panda appears to be an essential witness in the cass wherein charges under Section 325/326 have been framed against the accused persons. The Superintendent of Haldia S. D. Hospital is required to be examined for the purpose of proving admission of the victim in the S. D. Hospital, Haldia, The evidence of Manager, Labbaik Nursing Home and Dr. R. Kanjilal attached to that Nursing Home are appeared to be essential in support of the claim of the victim that she was treated there before Dr. Bikash Chandra Biswas examined her. It also appears that Ahibhusan Panda according to P. W. 1, 2, 3 and 4 is an eyewitness of the alleged incident and if so, he is also a material witness in this case. Although the learned trial Court did not take the trouble to set out the reasons as to why he found that examination of these five persons are required for just decision of the case, I think that the decision taken by him ultimately is correct and in consonance with the provisions of Section 311 of Cr. P. C. 11. There appears no illegality and irregularity in the order impugned. So, the same is not required to be interfered with and hence, it is dismissed. 12. Interim order, if any, stands vacated. Warrant of arrest if issued be recalled so as to enable the petitioners to participate in the trial in fresh mind and without fear. 13. The learned Court is directed to complete the examination of all five witnesses within 25 days from the date of the communication of this order by way of fixing the matter on day-to-day basis. 14. Learned Advocate for the petitioner is at liberty to communicate the gist of the order to the trial Court. Criminal Section is directed to supply urgent photostat copy of this order, if applied for, to the parties on usual undertaking.