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2012 DIGILAW 870 (CAL)

In Re : Jamuna Thapa v. .

2012-09-17

KANWALJIT SINGH AHLUWALIA

body2012
JUDGMENT The present petition has been filed under section 401 read with section 482 of the Code of Criminal Procedure assailing the order dated July 31, 2012 passed by the Additional Sessions Judge, Fast Track Court, Kerseong, Darjeeling, in Sessions Case No. 37 of 2010 arising out of Kerseong P.S. Case No. 111 dated July 15, 2010 for commission of offence punishable under sections 366/368 of the Indian Penal Code. 2. The petitioner claim that she is a housewife and at present is admitted in North Bengal Medical College and Hospital for treatment of HIV. The petitioner was named as accused in Case No. 111 dated July 15, 2010 lodged at the instance of one Mansingh Gurung. The charge sheet was submitted against the petitioner under sections 365/366/368/376 of the Indian Penal Code read with sections 4, 5, 6 of the Immoral Traffic (Prevention) Act, 1956. The prosecution in the charge sheet no. 122 dated October 3, 2010 cited eighteen witnesses. The petitioner was named as accused along with one Sangeeta Chettri. By order dated April 29, 2011 for offence punishable under sections 366/368 of the Indian Penal Code, the prosecution examined five witnesses. Thereafter the prime accused, Bishan Chettri, was arrested. It is stated that Shri Bishal Chettri was summoned to stand for trial under section 319 of the Code of Criminal Procedure. 3. The question which has been raised in this petition, is whether after Bishal Chettri has been summoned to stand for trial and has appeared before the court, the trial is to commence de novo or only opportunity of cross-examination is to be given to the newly added accused, Bishal Chettri. 4. Shri Biplab Mitra, appearing for the petitioner submitted that the evidence of five witnesses recorded in the presence of the petitioner ought to be accepted and after framing of charge against Bishal Chettri, five witnesses be re-examined qua Bishal Chettri only and he be given an opportunity of cross-examining them. Therefore, re-examination of the five witnesses already examined by the prosecution qua the petitioner is bad in the eyes of law. 5. The issue raised is no longer res integra. Therefore, re-examination of the five witnesses already examined by the prosecution qua the petitioner is bad in the eyes of law. 5. The issue raised is no longer res integra. It has been concluded by the Hon’ble Apex Court in Harinarayan G. Bajaj vs. State of Maharashtra and Others reported in JT 2010 (1) SC 10 that proceedings have to commence afresh and witnesses have also to be reheard and then right of cross-examination will accrue to the accused. Their Lordships had distinguished the meaning of the ‘proceedings’ and the ‘trial’ by observing as under:- “10. The relevant part of Section 319, Cr.P.C. is as under 319(1) : “(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) XXXXX (3) XXXXX (4) Where the Court proceeds against such person under sub-Section (1), then – (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard. (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which an inquiry or trial was commenced.” 11. Even a glance at this Section suggests that there is no escape from commencing the proceedings afresh and also that the witnesses have to be re-heard. Clause (a) is the basic provision and the use of the words ‘proceedings’ and the term ‘commence afresh’ has its own significance. If we accept the contention of Shri Naphade that the newly joined accused has no right of cross-examination, it would mean that on being joined under Section 319 (1) Cr.P.C., the only step that would be required would be framing of charge against him. In that, there would be a complete denial to such accused of an important right of cross-examination of the witnesses before the framing of the charge. It would only then mean that such accused would remain a mute spectator till the framing of the charge. 12. We would also give a meaningful interpretation to the word ‘proceedings’ which has been deliberately used by the Legislature. It would only then mean that such accused would remain a mute spectator till the framing of the charge. 12. We would also give a meaningful interpretation to the word ‘proceedings’ which has been deliberately used by the Legislature. The Legislature does not use the word ‘trial’ which essentially begins after framing of the charge. If the Legislature had intended that the newly joined accused should not get the right of cross-examining the witnesses examined before framing of the charge, it might have used the word ‘trial’. The deliberate use of the word ‘proceedings’ would then include not only the trial but also the inquiry which commences with Section 244 Cr.P.C. and ends with the framing of the charge under Section 246 Cr.P.C. The terminology ‘commence afresh’ has also its own force. It indicates that the whole inquiry which commences from Section 244 Cr.P.C. must begin afresh. The interpretation that we give to the words ‘proceedings’ is buttressed by the language of 319 (b) Cr.P.C. The plain language takes back the whole proceedings to the stage of taking cognizance. If we accept the contention of the appellant herein, then sub-clause (b) would be rendered otiose. We have, therefore, no doubt that the language of Section 319 Cr.P.C. itself pushes the proceedings back to the stage of inquiry, once the order under Section 319 (1) Cr.P.C. is passed by the Court and a new accused is joined therein.” 6. Dilating these two words, ‘proceedings’ and ‘trial’, their Lordships had observed that trial commence after framing of the charge whereas the proceedings include framing of the charge. It was stated that once charge is re-framed, witnesses are to be re-heard and right of cross-examination has to accrue to the accused. 7. In view of the authoritative pronouncement of law in Harinarayan G. Bajaj’s case (supra) it is not possible for this Court to strike a discordant note. This Court bow before the erudite exposition of the law by Their Lordships in the above case and therefore, is not in a position to cause any interference. The present petition is dismissed.