Calcutta High Court (Appellete Side)
Avijit Chakraborty vs The State Of West Bengal & Another on 5 July, 2016
Author: R.K. Bag
Bench: R.K. Bag
1 S/L.93. C.R.R. No.2644 of 2015 July 5, 2016 Bpg. In the matter of : Avijit Chakraborty Versus The State of West Bengal & another.
With C.R.R. No.3754 of 2013 The Central Bureau of Investigation Versus Abhijit Chakraborty.
Mr. Abhra Mukherjee, Ms. Anita Kundu.
...for the petitioner.
Mr. Asraf Ali.
...for the CBI.
The petitioner Avijit Chakraborty has challenged the order dated June 17, 2015 passed by learned Judge, Special (CBI) Court no.3, Bichar Bhawan, Calcutta in Special (CBI) Case no.42 of 2011, by which learned Judge of the trial court recalled P.W.2, P.W.3, P.W.5, P.W.6, P.W.12 and P.W.19 for reexamination at the stage of argument of the case. On the other hand, the Central Bureau of Investigation has challenged the order dated September 4, 2013 passed by learned Judge, Special (CBI) case no.42 of 2011, by which learned Judge of the trial court rejected the prayer of the CBI for reexamination of some of the charge-sheeted witnesses. Both the above revisions arise out of the same criminal proceeding and as such I am inclined to dispose of both the revisions by this common order.
2It appears from the materials on record that the present criminal case is started against the petitioner Avijit Chakraborty on the allegation that while he was posted as Assistant in Life Insurance Corporation, City Branch no.7, Kolkata, he prepared some commission bills in the name of some agents who were either non-existent or fake and thereby collected the commission cheques in the name of the agents and thereafter encashed those cheques through four fictitious bank accounts opened in Central Bank of India, Sodepur Branch, United Bank of India, Rahara Branch and United Bank of India, Bidhan Sarani Branch, Kolkata. I am informed that out of 25 charge-sheeted witnesses 19 witnesses were examined by the Central Bureau of Investigation before the trial court. It further appears from record that one J.C. Bhaduri, CSW 1 was examined as P.W.2, one Kanchanjyoti Sengupta, CSW 9 was examined as P.W.3, one Shyamal Kanti Datta, CSW 10 was examined as P.W.5, one Amal Kanti Roy, CSW 8 was examined as P.W.12 and one J.N. Rana, CSW 24 was examined as P.W. 19.
The Central Bureau of Investigation filed an application before the trial court for reexamination of some of the prosecution witnesses which was allowed by learned Judge of the trial court on September 18, 2012. The said order was challenged before the High Court by the petitioner by preferring revision being CRR no.3755 of 2012. Learned Single Judge of this Court had set aside the order dated September 18, 2012 passed by learned Judge of the trial court, but learned single Judge gave liberty to CBI to file fresh application stating cogent reasons for recalling prosecution witnesses, and in the event such application is filed, learned trial Judge was directed to consider the same in accordance with law 3 and to come to a finding whether reexamination of prosecution witnesses is necessary for just decision of the case and if the trial Judge thinks that the reexamination is necessary, then those prosecution witnesses may be reexamined in accordance with law. The Central Bureau of Investigation subsequently filed another application before the trial court for reexamination of some of the charge-sheeted witnesses before the trial court. On September 4, 2013 the trial court rejected the said application filed by the CBI on the ground that the matter has already been set at rest by the order of the High Court and posted the case for examination of the accused persons under Section 313 of the Code of Criminal Procedure. The said order dated September 4, 2013 passed by the trial court was challenged by way of revision by the CBI in CRR no.3754 of 2013.
The High Court initially granted stay of further proceeding of the trial court by an interim order which was extended till December 9, 2013. There was no stay of proceeding of the trial court after December 9, 2013. On June 17, 2015 learned Judge of the trial court passed an order for recalling P.W.2, P.W.3, P.W.5, P.W.6, P.W.12 and P.W.19 for reexamination for the just decision of the case. It appears from the said order that except P.W.19 the other witnesses sought to be reexamined by the trial Judge are officers of the banks from which the Investigating Officer seized account opening forms, specimen signature forms, pay-in- slips and cheques on which the signature of the petitioner appears, but the said seized cheques were not shown to the above prosecution witnesses during their examination-in-chief and those documents were not admitted into evidence. According to learned Judge of the trial court those seized documents are required to be 4 admitted into evidence for the just decision of the case, because those documents were sent to the government handwriting expert along with the document containing admitted specimen signature and handwriting of the present petitioner and the said Government Examiner of Questioned Documents has already been examined as P.W.17 and the report of the handwriting expert is admitted into evidence as exhibit 24. Under the above circumstances, learned Judge of the trial court recalled the above prosecution witnesses except P.W.19 who happens to be the Investigating Officer of the case. The petitioner has challenged the said order dated June 17, 2015 before this Court by way of revision being CRR 2644 of 2015.
With the above factual matrix Mr. Abhra Mukherjee, learned counsel for the petitioner contends that the lacunae in the evidence of the prosecution will be filled up if the above five prosecution witnesses are recalled and reexamination after completion of their cross-examination by the defence. Mr. Mukhrjee submits that the valuable right has accrued in favour of the petitioner after completion of cross-examination of above prosecution witnesses and the said right of the petitioner will be curtailed if the above prosecution witnesses are again recalled and reexamined as directed by learned Judge of the trial court. Mr. Mukherjee further contends that learned Judge of the trial court has proceeded with the hearing of the case in spite of stay order granted by the High Court in CRR no.3754 of 2013. He also argues that learned Judge of the trial court has exceeded his jurisdiction conferred on him by law by passing the order of recalling several prosecution witnesses, when the said issue was finally decided by learned single Judge of this Court in CRR no.3755 of 2012. The last submission of Mr. Mukherjee is that the present order dated June 5 17, 2015 is barred under Section 362 of the Code of Criminal Procedure as learned Judge of the trial court earlier rejected the application of Central Bureau of Investigation for recalling the said prosecution witnesses.
Mr. Asraf Ali, learned counsel for the Central Bureau of Investigation submits that the order of recalling an witness under Section 311 of the Code of Criminal Procedure is an interlocutory order and as such the bar contained under Section 362 of the Code of Criminal Procedure will not be attracted in passing order dated June 17, 2015 by the trial court. He further submits that recalling the above prosecution witnesses was necessary for the just decision of the case as the vital documents of the bank on which signature of the petitioner appears could not shown to the bank officials at the time of their examination-in-chief and as such those documents were not admitted into evidence, though the said documents were sent to the handwriting expert for opinion and the Government handwriting expert has already been examined as P.W.17 and his report is admitted into evidence as exhibit 24. He has vehemently urged this Court to consider that the lacunae in the evidence of the prosecution will not be filled up by recalling the above six prosecution witnesses, whose re-examination is necessary for the just decision of the case.
Having heard learned counsel representing the respective parties and on consideration of both the impugned orders under challenge in the revision, I would like to hold that there was no stay order granted by the High Court when learned Judge of the trial court passed the order dated June 17, 2015. So, I do not accept the submission made by the learned counsel for the petitioner that 6 learned Judge of the trial court has committed judicial impropriety by proceeding with the hearing of the case and passing the order dated June 17, 2015. I have already pointed out that the cheques, account opening forms, specimen signature forms, pay-in-slips etc. seized from various banks were kept on record and the said documents bearing signature of the petitioner were sent to handwriting expert along with the specimen handwriting and signature of the petitioner for comparison and opinion of the expert. The report of the handwriting expert has already been admitted into evidence as exhibit 24 and the handwriting expert has already been examined as P.W.17. Since the bank officials (P.W.2, P.W.3, P.W.5, P.W.6 and P.W.12) were examined as prosecution witnesses, but the documents which were seized from the respective banks were not shown to those witnesses by learned Public Prosecutor at the time of their examination-in-chief and thereby those documents were not admitted into evidence, in spite of the fact that the said documents are part of the record and part of report of handwriting expert. If the above prosecution witnesses are recalled and reexamined by the trial court for the just decision of the case, the petitioner being the accused person will get the opportunity to cross-examine those witnesses. Under the above circumstances, I am unable to accept the contention made on behalf of the petitioner that by the impugned order of recalling prosecution witnesses the lacunae in the evidence of the prosecution will be filled up.
It is pertinent to point out that the Central Bureau of Investigation filed an application before the trial court long back for recalling the above prosecution witnesses without disclosing reasons for recalling the witnesses, but learned Judge of the trial court allowed the prayer of Central Bureau of Investigation by an 7 order dated September 18, 2012. On December 12, 2012 learned single Judge of this Court had set aside the said order at the time of disposal of CRR no.3755 of 2012. However, learned single Judge has given liberty to CBI to file fresh application stating cogent reasons for the purpose of recalling such prosecution witnesses whom they wish to examine and in that event learned Judge of the trial court was directed to come to a finding whether reexamination of those witnesses is necessary for the just decision of the case and if the learned Judge forms opinion that reexamination is necessary he may proceed in accordance with law. The trial Judge rejected the application filed by the CBI praying for recalling the above prosecution witnesses by observing that the issue is set at rest by the order of the High Court in spite of the specific contrary direction of the High Court. In my view, the observation of learned Judge of the trial court by rejecting the prayer of Central Bureau of Investigation for recalling above five prosecution witnesses is not justified under the law. In view of my above findings, the order dated September 4, 2013 passed by learned Judge, Special (CBI), Court no.3, Calcutta in Special Case no.42 of 2011 is liable to be set aside.
The Supreme Court has laid down the criteria for recalling the prosecution witnesses by invoking Section 311 of the Code of Criminal Procedure and the guidelines about the role of the trial court in conducting the trial by invoking the provision of Section 311 of the Code of Criminal Procedure and Section 165 of the Evidence Act in paragraph 43 of "Zahira Habibulla V. The State of Gujarat" reported in (2004) 4 SCC 158 which is rightly quoted by the learned Judge of the trial court in the order dated June 17, 2015. It is the distinction of the learned Judge of the trial 8 court to recall any witness at any time for the just decision of the case by invoking the provision of Section 311 of the Code of Criminal Procedure. The order of recalling a witness by invoking Section 311 of the Code of Criminal Procedure cannot be branded as final order and as such the bar under Section 362 of the Code of Criminal Procedure cannot stand on the way of recalling a witness which, in my opinion, is an interlocutory order. In this connection, I am unable to accept the contention made on behalf of the petitioner that the impugned order dated June 17, 2015 is in the nature of final order and thereby bar under Section 362 of the Code of Criminal Procedure will be attracted.
Now, the question for consideration of the Court is whether learned Judge of the trial court is justified in recalling six P.Ws. for the purpose of their reexamination mainly to prove the documents seized from the bank by the Investigating Officer in course of investigation of case. I have already observed that the documents are already on record and those documents were the basis of the opinion of the handwriting expert who has already been examined as P.W.17 and his report is admitted into evidence as exhibit 24. In my view, learned Judge of the trial court is justified in recalling P.W.2, P.W.3, P.W.5, P.W.6 and P.W.12 for the purpose of admitting the documents seized from various banks by the Investigating Officer which are part of the record. However, I do not find any justification for recalling P.W.19 who is the Investigating Officer of the case and who has already been examined by the prosecution and cross-examined by the defence.
In view of my above findings, the order dated September 4, 2013 passed by learned Judge, Special (CBI), Court no.3, 9 Calcutta in Special (CBI) Case no.42 of 2011 is hereby set aside. The order datd June 17, 2015 passed by learned Judge, Special (CBI), Court no.3, Calcutta in Special (CBI) Case no.42 of 2011 is modified to the extent that P.W.2, P.W.3, P.W.5, P.W.6 and P.W.12 will be recalled and re-examined for the purpose of proving the documents seized from the banks by the Investigating Officer in course of investigation. The order of recalling P.W.19 is set aside. Learned Judge of the trial court is directed to give opportunity to the petitioner to cross-examine all the prosecution witnesses who will be recalled and re-examined in compliance with the order dated June 17, 2015 as modified by this Court.
With the above direction, both the criminal revisions are disposed of.
Urgent photostat certified copies of this order, if applied for, be given to the learned counsel for the parties, upon compliance of all necessary formalities.
(R.K. Bag, J.)