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2016 DIGILAW 61 (TRI)

Binoy Das @ Kajal v. State of Tripura

2016-03-08

DEEPAK GUPTA

body2016
ORDER : 1. This petition by the accused is directed against the order dated 22nd February, 2016 whereby, the learned trial Court rejected the application filed by the accused to summon a witness Ms. Bulti Debnath, former Judicial Magistrate and also to recall the Investigating Officer. 2. Copy of the application filed was not attached with this petition. When this Court insisted that this copy be made available, Mr. Deb, learned counsel has produced this application before this Court and according to Mr. Deb, this application was filed in the month of February, 2016 and has been decided on 22nd February, 2016. 3. In the application, it is stated that a new counsel Mr. Deb was engaged on 18th February, 2016 and after receiving the brief on proper scrutiny he realized that one Judicial Officer Smt. Bulti Debnath, who had recorded the statement of the victim under Section 164 Cr.P.C. had not been examined by the Hon’ble Court. He also find that the statement had not been exhibited and only the signatures of the victim had been exhibited. Therefore, a prayer was made that the Judicial Officer be called as a witness. 4. Another prayer was made that Investigating Officer of the case is required to be cross-examination and with regard to his cross-examination, it is stated that vital questions regarding the topography of the place of occurrence were not asked by the previous counsel who conducted the case for the accused-petitioner. It is further stated that moreover, some other vital question regarding seizure of vehicle and non-examination of vital witnesses were not asked by the previous counsel to the Investigating Officer of the instant case. 5. What is being essentially said is that the previous counsel was either incompetent or negligent in handling the matter. I do not think it behoves one member of the Bar to give such a certificate to another member of the Bar. 6. 5. What is being essentially said is that the previous counsel was either incompetent or negligent in handling the matter. I do not think it behoves one member of the Bar to give such a certificate to another member of the Bar. 6. Another glaring error in this application is that earlier this very accused through the previously engaged counsel had filed an application for recalling the victim and putting her certain questions and in fact, those questions were also set out in the application and those questions were “where she was kidnapped by the accused” and “whether she voluntarily went to the house of the aunt at Amarpur or not.” At that stage, counsel had not raised any issue with regard to the statement of the victim recorded under Section 164(5) Cr.P.C. 7. The learned Sessions Judge had rejected that application and against that order, Crl. Petn. No. 51 of 2015 was filed, which was dismissed by this Court on 4th January, 2016. 8. What is indeed shocking is that in the second application filed for recalling of witnesses under Section 311 Cr.P.C. there is no mention of the earlier application. There is no mention of the earlier order passed by the learned trial Court. There is no mention of the order passed by the High Court. 9. The learned trial Court is absolutely right that the statement of the victim recorded under Section 164(5) Cr.P.C. can be used off by the defence only if the victim was contradicted with that statement. From the examination of the witness, I find that there is no question put to her in this regard. Once no question has been put to the victim how can the Judicial Officer prove the statement of the victim? Under Section 145 of the Evidence Act, a witness has to be contradicted by his or her very own statement and Section 145 of the Evidence Act cannot be used to contradict one witness with the statement of another. 10. The Apex Court in Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839 held as follows:- “12. Under Section 145 of the Evidence Act, a witness has to be contradicted by his or her very own statement and Section 145 of the Evidence Act cannot be used to contradict one witness with the statement of another. 10. The Apex Court in Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 SC 839 held as follows:- “12. …A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” “13. It is obvious from a perusal of Section 145 that it applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145. In other words, where the statement made by a person or witness is contradicted not by his own statement but by the statement of another prosecution witness, the question of the application of S. 145 does not arise.” 11. Without confronting the victim with her previous statement and bringing the same to her notice and contradicting her, the petitioner cannot by indirect means be permitted to do what he was not permitted to do directly. It is indeed unfortunate that the petitioner tried to overreach the orders of the High Court by trying to get done indirectly what the High Court had directly disallowed. When the High Court had refused to recall the victim, the question of calling the Judicial Officer does not arise. 12. As far as recalling the I.O. is concerned, I find that all the averments made in the petition are absolutely vague and general in terms and there are no specific questions pointed out. Just because lawyers have changed is not a ground to allow an application under Section 311 Cr.P.C. The learned trial Court has rightly held that provisional Section 311 Cr.P.C. cannot be applied to this case. 13. I, therefore, find no merit in this petition which is, accordingly, dismissed.