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2019 DIGILAW 205 (GAU)

SUJIT KUMAR SAIKIA v. STATE OF ASSAM

2019-02-14

HITESH KUMAR SARMA

body2019
JUDGMENT : HITESH KUMAR SARMA, J. 1. Heard Mr. BM Choudhury, learned counsel for the petitioner as well as Mr. B Sarma, learned Additional Public Prosecutor, appearing for the State respondent No. 1. 2. This criminal revision petition has been filed under Sections 401 read with Section 397 of the Cr.PC challenging the legality, propriety and correctness of the order, dated 03.08.2009, passed by the learned Additional Sessions Judge, (FTC), Bongaigaon in Sessions Case No. 18(S)/1993 rejecting the prayer of the accused-petitioner to examine the defence witness except the petitioner himself and also rejecting the prayer for further examination/reexamination of the Prosecution Witness (P.W.) No. 5/Doctor. 3. I have perused the impugned order. Also perused the recorded of the learned trial court. 4. It appears from the order that the accused-petitioner made an application before the learned Additional Sessions Judge to examine one Magistrate who had recorded the statements of the complainant and the witnesses under Sections 200 and 202 of the Cr.PC, respectively, as witness which was rejected. 5. It has come out during the course of hearing that the said Judicial Magistrate has since been retired long back and not in service. There are some other modes through which the signature, etc of the Magistrate concerned can be exhibited, if necessary, like that of examination of the Bench Clerk attached to the court or the office staff who are acquainted with the signature of the concerned Magistrate. 6. Accordingly, if any office staff/Bench clerk is available in the station concerned, who is acquainted with the signature of the then learned Magistrate who recorded the statements in the complaint case, an opportunity should be given to the defence to examine him. 7. On the other hand, so far examination of one Doctor from the Civil Hospital, Bongaigaon is concerned, in the considered view of this court, the prayer should be allowed because it does not appear to this court that the said prayer was made for the purpose of vexation or causing delay in the trial. 8. On consideration of the entire materials on record, including the impugned order, it is found that taking into account the evidence of the PW5/ Autopsy Doctor and other evidence on record, if the prayer of the accused-revision petitioner is not allowed, it is likely to prejudice his defence. 9. 8. On consideration of the entire materials on record, including the impugned order, it is found that taking into account the evidence of the PW5/ Autopsy Doctor and other evidence on record, if the prayer of the accused-revision petitioner is not allowed, it is likely to prejudice his defence. 9. That being so, this being a very old pending case, originated in the year 1987, and pending before this court for the last 10 (ten) years, the order dated 03.08.2009, passed by the learned Additional Sessions Judge, (FTC), Bongaigaon in Sessions Case No. 18(S)/1993 is set aside. The learned Additional Sessions Judge, (FTC), Bongaigaon or/the court in which the case is pending shall allow the petitioner to examine one Doctor from Civil Hospital, Bongaigaon and also, if available, the learned Magistrate concerned or persons who are acquainted or familiar with his signature. 10. The revision petition is, accordingly, allowed. 11. Return the LCR along with a copy of this judgment.