DEBASISH CHAKRABORTY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS revisional application is directed against the order dated 14.5.1999 passed by Sri B. Roy, Additional Chief Judicial Magistrate, Alipore in T.R. Case No. 120/98 of his Court. The accused Debasish Chakraborty is the applicant. By the impugned order, the learned Magistrate allowed the complainant's prayer for re-examining one witness namely, the P.W.1, after his examination-in-chief was over and the charge was also framed on the basis of the evidence of the P.Ws. already examined.

(2.) THE contention of the learned Advocate for the applicant is that the learned Magistrate was not in a position to pass such an order, inasmuch as the question of re-examination of a witness can arise only after the cross- examination of that witness is over in view of the provisions of Section 246(5) Cr.P.C. According to Section 246(5) Cr.P.C., if the accused wishes to cross-examine any of the witnesses for the prosecution, whose evidence has already been taken, then he should name such witnesses and thereafter such witnesses shall be recalled and after cross-examination and re-examination (if any) he shall be discharged. It is argued that the order in which the words 'cross-examination' and 're-examination' take place in this Section is a clear index of the intention of the Legislature that the re-examination, if any, cannot be held until and unless the witness has been cross-examined. In other words, the right of the complainant of re-examining any of his witnesses, whose examination-in-chief has already been made but whose cross-examination is yet to be held, cannot arise before the cross-examination is actually done. The learned Advocate for the applicant-accused admits this position of law and expresses his inability to show me any provision of law or any authority under which it can be said that the complainant has already acquired the right to re-examine the witness in question at this stage when his cross-examination is yet to be held.

(3.) IN view of these reasons I have no hesitation to hold that the learned Magistrate committed a grave error of law by allowing the petition of the complainant to re-examine the P.W.1, whose cross-examination was yet to be held, giving a direction incoherently that after the cross-examination of the witness in question would be over the complainant would re-examine him.