MUKTI KUMAR GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) PETITIONER is the accused in Special Court case No. 3 of 1973 in the 5th Additional Special court, Calcutta. Prosecution has examined 13 witnesses in the case. The learned Judge has framed charge on two counts against him under section 161 u. P. C. and Section, 5 (1) (d) and 3 (2)of the Prevention of Corruption Act, 1947. The petitioner has pleaded not guilty to the charge and has, forthwith, given a list of P. Ws. for their cross examination. The learned Judge has recalled those P. Ws. for cross-examination. On 1. 8. 73 P. W. 9, A. K. Das cams to court on being recalled, as wished by the accused, for his cross-examination. The Public Prosecutor in charge of the case filed a petition before the learned Judge to allow him "to further examine" him to prove the authorship of the document "already collectively admitted in evidence as Ext. 6 on the evidence of P. W. 2, N. K. Dutta. Accussed petitioner objected to the prayer. Public Prosecutor filed another petition" to allow the said documents to be proved by P. W. 9 under section 540 of the Code of Criminal Procedure". The petitioner also objected to it. The learned Judge by his order of that date allowed the prayer but without being specific as to whether he was granting the prayer in the first or the second petition of the prosecution. It is the propriety and legality of that order that is challenged in this Rule.

(2.) THIS is a case being tried as a warrant case in accordance with the procedure in Chapter 21 of the Code of criminal Procedure to the hereafter called the Code. The trial has passed through the stage of taking evidence under section 252, framing of the charge under section 254, recording of the plea of the accused under section 255, and is now at the stage after recall (of P. W. for cross-examination as wished by the accused, under section 256. Cross-examination is not yet over. The question is whether an witness whose evidence has been taken under section 252 and whose cross examination is still not finished, can be again examined-in-chief. Section 137 of the Indian Evidence Act states that the examination of witness by the party who calls him shall be galled his examination-in-chief. Section 138 of the Act states that witnesses shall be first examined-in-chief, then (if the adverse party so desires)cross-examined, then (if the party calling him so desires) re-examined. Aftier examination in chief is concluded, a witness is offered for cross-examination. Here the examination-in chief of P. W. 9, A. K. Das ended before framing charge under section 254. Prosecution cannot, therefore. "further" examine 1dm as that examination will have to be examination-in-chief, as laid down in section 137 of the Indian Evidence Act. The prayer in the first petition of the Public Pro sector was therefore, not entertainable.

(3.) SECTION 135 of the Indian Evidence Act lays down the order of production and examination of witnesses. It runs thus :