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2018 DIGILAW 329 (GAU)

Dibakar Das v. State of Assam

2018-02-21

AJIT BORTHAKUR

body2018
JUDGMENT & ORDER : 1. This a petition under section 482 read with Section 397/401 Cr.P.C., whereby the petitioner/accused has prayed for quashing of an order, dated 09.04.2015, passed by the learned Judicial Magistrate, 1st Class, kamrup (M) at Guwahati in G. R. Case No. 10905/2011 rejecting the prayer for recalling the informant/respondent No. 2 for further cross-examination. 2. The petitioners case, in a nutshell, is that the respondent No. 2 filed an F.I.R., on 13.11.2011, before the Officer-In-Charge, Fatasil Ambari P.S. alleging that on that day at about 12 noon, while their three labourers were digging a canal on the side of their compound wall, the petitioner rebuked them and asked them to stop work. Witnessing the incident, the respondent No. 2 intervened, but in turn, the petitioner rebuked her uttering slang words and gave her a push. Based on the aforesaid F.I.R., Fatasil Ambari P.S. Case No. 440/2011 u/s 294/354/506 IPC, dated 13.11.2011, was registered and after completion of investigation laid a charge-sheet under the aforesaid Sections of IPC. The learned Magistrate framed charges accordingly and trial commenced. During trial, the respondent No. 2/informant, in her evidence as P.W.-1 has made exaggerations of the incident, which are stated to be apparently contradictory to her statement given u/s 161 Cr.P.C., before the Investigating Officer. The material contradictions were, however, omitted to be brought to her (P.W.-1) notice in cross-examination. Therefore, by petition No. 151/2015, dated 09.04.2015, filed u/s 311 Cr.P.C., the petitioner prayed for affording an opportunity to further cross-examine the informant (P.W.-1) so as to highlight the material contradictions between her evidence and her statement given u/s 161 Cr.P.C. The learned Magistrate, however, rejected the said petition vide the impugned order, dated 09.04.2015. 3. The aforesaid impugned order reads herein below extracted- "09.04.2015 Accused is present. No PWs have turned up. Issue fresh summon to PWS. Seen pet. No. 151 filed by the Ld. Defence counsel u/s 311 Cr.P.C., praying for recalling the PW. 1 for further examination. Heard both sides. The learned counsel submitted that few vital questions were left, to be asked to the PW. 1 and hence they have prayed for resummoning the PW. 1. But in the said petition the learned defence counsel had not mentioned the questions of points on which the PW. 1 need to be examined further. Hence, I do not find any justification to re-summon the PW. at this stage. 1 and hence they have prayed for resummoning the PW. 1. But in the said petition the learned defence counsel had not mentioned the questions of points on which the PW. 1 need to be examined further. Hence, I do not find any justification to re-summon the PW. at this stage. Pet. No. 151 is hereby rejected. Fixing 17.06.2015 for P.Ws." 4. The above impugned order reveals that the basic reason for rejection of the petition was that the petitioner had not mentioned the questions or points on which the P.W.-1 was sought to be further cross-examined and as such, there was no justification to re-summon the P.W.-1 for cross-examination u/s 311 Cr.P.C. 5. Mr. Z. Alam, learned counsel for the petitioner submits that if the material contradictions between the evidence of P.W.-1 and her statement given u/s 161 Cr.P.C. are not brought in her cross-examination, by way of recalling her, the petitioners defence case will be highly prejudiced. 6. Mr. P.P. Dutta, learned counsel appearing on behalf of the respondent No. 2/informant submits that the petitioners case is not of such a rare nature to justify further cross-examination of the victim as she has already been discharged after cross-examination. 7. It may pertinently be mentioned that the court has plenary power to summon or recall any witness at any stage under Section 311 Cr.P.C., if there exists justifiable reason to do so in the interest of justice to both the parties to the proceeding, but the court should act with circumspection and exercise the power sparingly. 8. Perusal of the impugned order reveals that P.W.-1, the victim woman and the informant is certainly a material witness in the case as the offences were allegedly committed in respect of her and undoubtedly, scrutiny of the contradictions, if significant and material between her evidence during trial and her statement given u/s 161 Cr.P.C. is essential to secure the justice. Although the petitioner has availed the opportunity of her (P.W.-1) cross-examination, yet a duty was cast on the trial court to allow him to recall such a material witness u/s 311 Cr.P.C. for further cross-examination to do away with pure justice confining to the points, he omitted to cross-examine the prosecution witness in such circumstances. Although the petitioner has availed the opportunity of her (P.W.-1) cross-examination, yet a duty was cast on the trial court to allow him to recall such a material witness u/s 311 Cr.P.C. for further cross-examination to do away with pure justice confining to the points, he omitted to cross-examine the prosecution witness in such circumstances. Therefore, in the backdrop of facts, this court is of the considered view that the learned trial Magistrate has committed an error in law and facts by rejecting the petitioners prayer u/s 311 Cr.P.C., citing the above cited reasons, whereby he is deprived of his right to further cross-examine the witness (P.W.-1) in respect of the vital contradictions, he noticed after the witness was discharged after examination and cross-examination. 9. For the reasons, set forth above, the petition is allowed setting aside the impugned order, dated 09.04.2015, passed by the learned Judicial Magistrate, 1st Class, kamrup (M), Guwahati in G.R. Case No. 10905/2011, with a direction to the learned trial magistrate to allow the petitioner/accused to further cross-examine the P.W.-1, the victim woman, confining to the contradictions only between her evidence in chief and her statement given u/s 161 Cr.P.C. by way of recalling the witness u/s 311 Cr.P.C. 10. Both parties shall appear before the learned Court below on 21.03.2018 at 10.30 a.m. to receive further instructions.