DIPAK KUMAR MAHATA Vs. SUSOMA MAHATA

JUDGEMENT

(1.) This revisional application has been preferred by the petitioners assailing the order dated 17.05.02 passed by the learned Additional Sessions Judge, Durgapur in Criminal Motion No. 31 of 2001 thereby setting aside the orders dated 18.06.01 and 27.06.01 passed by the learned Sub-Divisional Judicial Magistrate (in short SDJM), Durgapur in Case No. C.R. 339 of 1994.

(2.) Mr. Milon Mukherjee, learned advocate for the petitioners contended that the criminal case being C.R. Case No. 339 of 94 pending before the learned SDJM, Durgapur was started on the basis of complaint lodged by opposite party Susoma Mahata under sections 494/109 of Indian Penal Code (in short IPC). It was a warrant procedure case and after evidence of witnesses for the complainant before charge and after charge the accused persons, who are the petitioners here, were also examined under section 313 of Criminal Procedure Code. The examination under section 313 Criminal Procedure Code was done on 11.06.01 and thereafter the learned SDJM fixed 18.06.01 as date of argument. On 18.06.01 the complainant opposite party filed an application praying for recalling PW 3 Debasish Roychowdhury and the learned SDJM by his order dated 25.06.01 rejected the said prayer and fixed 29.06.01 for hearing arguments. Before that on 27.06.01 complainant filed another petition praying for re-examination of prosecution witness No. 1, namely, complainant herself Susoma Mahata and PW 4 Pranab Bhattacharya. The learned Magistrate after considering the said prayer and after hearing both parties rejected the said prayer also. Being aggrieved by and dissatisfied with the orders dated 25.06.01 and 27.06.01 the complainant opposite party filed the criminal motion bearing No. 31 of 2001 and the learned Additional Sessions Judge, Durgapur after hearing both the parties allowed the motion and set aside the orders dated 18.06.01 and 27.06.01 passed by the learned SDJM. The accused persons have now moved this Court challenging the said order dated 17.05.02 passed by the learned Additional Sessions Judge.

(3.) Mr. Mukherjee further contended that section 311 of Criminal Procedure Code empowers any Court to summon any person as a witness or recall or re-examine any person already examined at any stage of enquiry or trial but before judgment, if the Court thinks that such examination of the witness is essential for the just decision of the case. The learned SDJM rejected the prayer of the complainant after assigning reasons and made it clear in his orders that PW 3, PW 1 and PW 4 have already been examined and cross examined and in their evidence they have stated the essential ceremonies performed in the marriage between petitioner No. 1 Dipak Mahata and petitioner No. 4 Rina Mahata. Therefore, the prayer for recall or re-examination of the said three witnesses in respect of the points mentioned in the petition were not necessary at all. The learned Additional Sessions Judge did not discuss what was the evidence that the complainant and her witnesses deposed in Court and whether after such evidence there was any need for re-examination of such witnesses on the points as mentioned in the application for recall. It was not a case that evidence of the said three prosecution witnesses remained completely blank in respect of the points for recall. The learned Additional Sessions Judge did not consider that there was no need of further re-examination and after defence was disclosed and accused persons were examined under section 313 Criminal Procedure Code there was no cogent ground to allow the prayer of complainant to feel in the lacuna of prosecution evidence. The learned Additional Sessions Judge failed to appreciate the evidence as well as facts and circumstances of the case and order of the learned Additional Sessions Judge was a product of non-application of judicial mind. Accordingly, the order of the learned Additional Sessions Judge should be set aside.