Bubai Biswas @ Rahul Dutta vs State Of West Bengal & Anr

Petitioner has assailed the order dated 9th January, 2017 passed by the learned Additional Sessions Judge, 7th Court, Barasat in Sessions Trial No. 01(11) of 2013 arising out of Barasat P.S. Case No. 956 of 2013 dated 28.04.2013 under sections 376(1)/328/506/509 of the Indian Penal Code whereby a petition dated 26.9.2016 filed by the petitioner/accused praying for further cross-examination of PW-3 on recall was rejected by a well reasoned order after hearing the learned counsel for the parties.

Learned counsel for the petitioner submits that PW-3 is required to be recalled for further cross-examination for the purpose of proving some documents. It is contended that a certified copy of the affidavit-in-chief of PW-2 in MAT Suit No. 230 of 2015 is required to be brought on record by way of further cross-examination of PW-3 which is necessary for the just decision of the case. In support of such submission reference has been made to the case of Rajaram Prasad Yadav Versus State of Bihar and Another reported in (2013) 14 Supreme Court Cases 461 (paragraphs 14 to 18).

Learned counsel appearing for the State/opposite party no.1 countered that PW-3 was cross-examined at length on behalf of the accused. Now the petitioner/accused seeks to recall this witness to fill up the lacuna in the defence case and to delay the proceedings.

For the purpose of the present case it may be useful to refer to the provisions of section 311 of the Code of Criminal Procedure quoted hereinbelow :

"311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

It is clear from the aforesaid provision that the power vested under section 311 CrPC is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. In the decision referred, in paragraph 14 of the judgement the Hon'ble Supreme Court held as follows :

"14. A conspicuous reading of Section 311 CrPC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution."

In the case in hand, the accused/petitioner filed an application under section 311 CrPC before the trial court praying for recalling PW-3 for further cross-examination of the aforesaid witness on the ground mentioned in paragraph 3 of the application which reads as follows :

"3. That the Ld. Defence Counsel representing the accused person cross-examined the PW3, who is the main and as well as the star witness and at whose instance the accused/petitioner was prosecuted and has been facing trial as such to elicit the suppressed as well as self-contradictory facts, to expose the serious discrepancies and thus to elicit truth from the mouth of witness i.e. PW.3, she is required to be recalled tested through thorough re-examination, concerning a number of documents which are very much connected with the instant case and hence inevitably her recall for re-examination is very much needed and very much essential to the just decision of the case."

It is evident from the aforesaid paragraph 3 of the application that the documents on which PW-3 is sought to be recalled have not been specified anywhere in the application. The points on which this witness is sought to be recalled have also not been mentioned. At the time of hearing of the revisional application, learned counsel for the petitioner submits that the certified copy of the affidavit-in-chief/deposition of PW-2 in connection with MAT Suit No. 230 of 2015 is required to be tendered in evidence. There is no reference to the aforesaid document anywhere in the application under section 311 CrPC. I have perused the evidence of PW-3 including the cross-examination of the aforesaid witness. Evidently, PW-3 has been cross-examined extensively on behalf of the accused. It appears that the accused seeks to recall PW-3 for further cross-examination to delay the proceedings of the case. The decision referred on behalf of the petitioner is not apposite for the purpose of the present case.

For the reasons aforestated, no interference is warranted with the order impugned.

The application being C.R.R. 229 of 2017 is thus dismissed.

The application being C.R.A.N. 2109 of 2018 is also dismissed.

No order as to cost.

The trial court shall make every endeavour to expedite the trial of Sessions Trial No. 01(11) of 2013 and dispose of the same in accordance with law without granting unnecessary adjournment to either of the parties.

Let a copy of this order be communicated forthwith to the trial court.

Urgent photostat certified copy of this order, if applied for, be given to the applicant upon compliance of requisite formalities.