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2014 DIGILAW 974 (CAL)

Saila Das v. State of West Bengal

2014-10-29

ASHIM KUMAR ROY

body2014
Judgment : Ashim Kumar Roy, J. The petitioners, who have been facing their trial on a charge under sections 304/34 IPC before the Additional District Judge, Fast Track 4th Court at Barasat, North 24-Parganas, after argument was over, moved an application invoking section 311 Cr.P.C. praying for re-examination of the Investigating Officer of the case, PW/6 on recall. Such prayer was rejected, hence this criminal revision. The Learned Counsel for the petitioner at the very outset submitted before the Trial Court, the prayer was for reexamination of the Investigating Officer of the case PW/6, with reference to the evidence of PW/1, PW/2, PW/8, PW/9, PW/10 and PW/11, but now such prayer is not pressed as regards to the PW/1, PW/9 and PW/11 and be restricted to PW/2, PW/8 and PW/10. He further submitted both the PW/9 and PW/10 were although charge-sheeted witnesses, but they were examined on January 16, 2013, after the examination of the accused under section 313 Cr.P.C. was over, the defence witness was examined and the matter was fixed for argument. But somehow or other, the defence Counsel missed to cross-examine them on some very material points. In this regard, the Learned Counsel for the petitioner invited the attention of this Court to annexure-P3 to this criminal revisional application and submitted as to why the examination of Investigating Officer of the case PW/6 was sought for, with reference to the statement made to him during investigation by the PW/2, PW/8 and PW/10 was categorically noted therein. On the other hand, Learned Junior Government Advocate vehemently opposed this application and submitted that the aforesaid application under section 311 Cr.P.C. was moved at a stage when after completion of argument, the date was fixed for delivery of the judgment. He further contended that the none of the ground, on which the re-examination of the Investigating Officer of the case, was made, is at all tenable and this application is liable to be dismissed. Heard the Learned Counsel appearing on behalf of the parties and perused the materials on record. In course of trial, a court is legally empowered to reexamine any witness on recall at any stage before the delivery of the judgment. However, such power to be exercised in a very exceptional cases, where there is sufficient justification to hold such examination is essential for just decision in the case. In course of trial, a court is legally empowered to reexamine any witness on recall at any stage before the delivery of the judgment. However, such power to be exercised in a very exceptional cases, where there is sufficient justification to hold such examination is essential for just decision in the case. Now, from the materials on record, it is found that PW/2 was examined on December 1, 2005 and the Investigating Officer on November 10, 2009. It is further found that the PW/6, the Investigating Officer of the case was cross-examined at length and defence got sufficient opportunity to discredit the prosecution witnesses with reference to their earlier statement made during investigation. Therefore, at this belated stage and when the case is pending for delivery of judgment, the question of recalling of the Investigating Officer of the case for his cross-examination with reference to the statement of the PW/2 made to him does not at all arise. So far as the PW/9, the scribe of the FIR and PW/10 are concerned, both were examined on January 16, 2013 and the application under section 311 Cr.P.C. was filed on August 19, 2013 nearly one year and six months after. While the cross-examination of PW/9 was declined, PW/10 was cross-examined at length. It is further found while PW/10 was cross-examined, the witness was not confronted by the defence with reference to his any earlier statement made to the Investigating Officer of the case. Therefore, the cross-examination of the Investigating Officer of the case with reference to the statement of PW/10 made to him during the investigation would be of no use. For the reasons stated above, this Court does not find any merit in this application and the same stands dismissed and disposed of. The trial court is directed to deliver the judgment without any further delay. The office is directed to communicate this order to the court below at once.