SISIR GHOSH Vs. STATE

JUDGEMENT

(1.) This revisional application is directed against the order dated 6.8.2003 passed by the learned Additional Sessions Judge, 6th Court, Alipore in Sessions Trial No. 5(4) of 2001. By the impugned order learned Additional Sessions Judge directed that witnesses are to be examined afresh, and being aggrieved, the accused petitioner has preferred this revision.

(2.) Mr. Biplab Mitra, learned senior advocate appearing for the petitioner contended that observation of the learned Additional Sessions Judge that examination of 12 witnesses earlier in absence of this petitioner was not recorded under section 299 of the Code of Criminal Procedure (hereinafter called Code) is bad in law. There were two accused persons in the sessions case namely Debasish Mondal alias Dibakar Mondal and this petitioner and the learned Sub-Divisional Judicial Magistrate (hereinafter referred as S.D.J.M.), Alipore committed the case to the Court of Sessions along with accused Dibakar after filing the case against the petitioner for the present. From the Court of the learned Sessions Judge, Alipore, the case was transferred to the learned Additional Sessions Judge, 6th Court and after framing charge against Dibakar Mondal 12 witnesses were examined. It was clear to the learned Additional Sessions Judge that this petitioner did not appear and as such the evidence of 12 witnesses recorded by him in the trial of Dibakar Mondal should be treated as recording of evidence under section 299 of the Code against this accused petitioner. After recording the 12 witnesses the accused Debasish @ Dibakar Mondal absconded and warrant is pending against him and case against him was filed for the present on 31.3.2003. In the meantime this petitioner was produced before the learned Additional Sessions Judge and after framing of charges some of the witness(sic) were further examined in chief and cross-examined on behalf of this petitioner. Thereafter the learned Judge by the impugned order has again directed examination of witnesses afresh on the basis of petition filed by the learned Public Prosecutor in-charge of the prosecution in this sessions case.

(3.) Mr. Mitra contended that recording of evidence in sessions trial under section 231 of the Code covers both the provisions of sections 273 and 299 of the Code. After examination of 12 witnesses in the trial against Debasish and after examination of some witnesses including cross-examination against this petitioner the order of the learned Sessions Judge for a fresh trial and recording of evidence afresh is illegal and improper. The procedure adopted by the learned Judge is not only bad in law but unknown in law. Accordingly the said order should be set aside and the learned Additional Sessions Judge may proceed with the examination of further witnesses who have not yet been examined and there cannot be recording of evidence afresh of all witnesses.