Gauhati High Court
Bhabesh Sarmah vs The State Of Assam & Anr on 25 May, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
Criminal Revision Petition No. 154 of 2017
Bhabesh Sarmah,
S/O Chandra Nath Sarmah,
Village-Panjabari, Mango Road,
P.O. Panjabari, Guwahati,
Dist. Kamrup (M), Assam-37.
----- Petitioner.
- VERSUS -
1. The State of Assam.
2. Omar Ali,
S/O Bachu Seikh,
Villaage-Khakjani, P.O. Khanhimuli,
Dist. Darrang (Assam), Pin. 784125.
----- Respondents.
BEFORE Hon'ble mr. Justice HITESH KUMAR SARMA Advocates for the petitioner : Mr. K Bhuyan.
Mr. N Islam.
Advocate for O.P No. 1 : Ms. S Jahan, Addl. P.P.
Date of hearing and Judgment & Order : 25th of May, 2017.
JUDGMENT & ORDER
(oral)
I have heard Mr. K Bhuyan learned counsel for petitioner and Ms. S Jahan, learned Additional Public Prosecutor, Assam.
2. This criminal revision petition is directed against the order dated 04-04-2017, passed in CR Case No. 1097/2013, by the learned Additional Chief Judicial Magistrate, Darrang, Mangaldai.
Crl. Rev. Pet. No. 154 of 2017 Page 1 of 63. The complaint case before learned Additional Chief Judicial Magistrate, Darrang, Mangaldai is against the petitioner/accused for commission of alleged offences under Sections 409/420 of the IPC.
4. The petitioner, herein, received an amount of Rs. 3,50,000/- from complainant/respondent No. 2 for purchasing a new MF 1035 tractor for him, in presence of witnesses, on 20-12-2010, undertaking to return the money to the complainant/respondent No. 2 with interest, if he fails to supply the tractor to him. The accused/petitioner did not purchase the tractor and misappropriated the money.
5. The learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, took cognizance of the complaint against the accused/petitioner under Sections 409/420 of IPC and proceeded to examine the witnesses for the complainant/respondent No. 2.
6. After the complainant/respondent No. 2, as PW1, and some other witnesses, were examined, the complainant/respondent No. 2 filed an application before the learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, being No. 4278/2016, on 19-08-2016, under Section 311 of the Cr.P.C. with a prayer to the Court to re-call and re-examine PW1 as some vital points were inadvertently left to be disclosed during his examination-in-chief.
7. The petitioner filed objection to the said petition, vide No. 4278/2016. The accused/petitioner prayed the Court to reject the petition under Section 311 Cr.P.C. basically on the ground that (i) The lacuna in the evidence of PW1 could not be allowed to be filled up by re-examining him and (ii) That right to re-examination of a witness arises only after conclusion of evidence of all witnesses.
8. In the instant petition, in paragraph-4, the accused/petitioner is found to have submitted that although the complainant/respondent No. Crl. Rev. Pet. No. 154 of 2017 Page 2 of 6 2 did not categorically state as to what was left to be disclosed in the examination-in-chief of PW1, yet the learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, vide his order dated 04-04-2017, stated that PW1, i.e. complainant/respondent No. 2 wanted to exhibit a document, Xerox copy of which was already there in the case record.
9. It appears from the instant petition that the petitioner has prayed to set aside the order dated 04-04-2017 of learned Additional Chief Judicial Magistrate, Darrang, Mangaldai, being illegal.
10. This Court has observed in this proceeding that this revision petition is filed against granting of permission for re-examination of PW1, under Section 311 Cr.P.C.
11. There is no doubt that rejection or grant of a prayer under Section 311 Cr.P.C. to recall or re-examine a witness, is an interlocutory order and no revision lies against such order. No whether in the Code of Criminal Procedure, Interlocutory Order has been defined. But the Hon'ble Supreme Court in the case of Smt. Parmeshwari Devi -vs- The State and another, reported in (1977) 1 SCC 169, the Hon'ble Supreme Court observed as follows:
"The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the preliminary stages of an enquiry or trial. The purpose of sub- section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay. This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it. But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adversely affects his rights."Crl. Rev. Pet. No. 154 of 2017 Page 3 of 6
12. It appears from the impugned order that permission to recall PW1 for his re-examination was accorded by the learned Additional Chief Judicial Magistrate, in the interest of justice, imposing a cost of Rs. 500/- upon the complainant/respondent No. 2 in respect of a document, Xerox copy of which is there in the record from before.
13. The learned counsel for the petitioner, as stated above, has canvassed before the Court that re-calling or re-examination of a witness should take place only after completion of recording of evidence of the witnesses.
14. This argument of the petitioner does not merit acceptance in view of the provisions of Section 311 Cr.P.C. itself 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.
15. The Hon'ble Supreme Court also in Mannan Sheikh & others -vs- State of West Bengal and another, reported in (2014) 13 SCC 59, in paragraphs 12 and 14 observed as follows:
"12. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re- examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to Crl. Rev. Pet. No. 154 of 2017 Page 4 of 6 the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine".
16. While the learned Additional Chief Judicial Magistrate passed the order in the interest of justice, in any considered view, it should be understood to mean that he passed the order to recall the witness for furtherance of the cause of justice and for a just decision. Therefore, on the basis of the ratio laid down in the above discussion of the Hon'ble Supreme Court, I do not find that the impugned order was passed by the learned Additional Chief Judicial Magistrate suffers from any illegality.
17. While dealing with Section 311 of the Code in Rajendra Prasad - vs Narcotic Cell, reported in (1999) 6 SCC 110, at Page-113, para-8, regarding recalling of a witness for filling up lacuna, it may be stated here that the impugned order clearly indicates that the learned Additional Chief Judicial Magistrate allowed the complainant/ respondent No. 2 to exhibit a document, Xerox copy of which was already there in the record, which the complainant/respondent No. 2 did not exhibit inadvertently. Such a situation has been dealt with by the Hon'ble Supreme Court in Rajendra Prasad (supra) and observed as follows:
Crl. Rev. Pet. No. 154 of 2017 Page 5 of 6"Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
18. Therefore, the argument of the learned counsel for the petitioner, in this count, is devoid of merit.
19. It appears from the above decision that Court has ample power to take a decision, in a matter such as in the present proceeding, keeping in mind that it will be helpful in arriving at a just decision. The inadvertent mistake is not irreparable.
20. There is no dispute at the bar that the impugned order is an interlocutory order. Section 397(2) of the Cr.P.C. expressly barred exercise of revisional power of the Court in relation to any interlocutory order.
21. On the facts also, as indicated in the foregoing discussions, this revision petition is not maintainable.
22. In view of the above, this revision petition is dismissed being not maintainable in law and facts.
JUDGE Paul Crl. Rev. Pet. No. 154 of 2017 Page 6 of 6