SHARMISTHA GON Vs. HABIB AHMED

JUDGEMENT

(1.) This revisional application has been filed by the accused petitioner assailing the order dated 7.6.05 passed by the learned Judicial Magistrate, 2nd Court, Arambagh in Case No. C.R. 245 of 1998 thereby directing production of the original marriage register from the office of the Birth, Death and Marriage Registrar, West Bengal for proving a marriage certificate allegedly issued by P.W. 9 Mira Mukherjee, the Marriage Registrar who refused to identify her signature on the Marriage Registration Certificate produced in Court.

(2.) Mr. Ashok Mukherjee, learned Senior Advocate appearing for the accused petitioner submitted that the order of the learned Magistrate dated 15.9.01 framing charges against this accused petitioner and another was challenged before this Court in revisional application being C.R.R No. 2390 of 2001. This Court directed that there is no material to frame charge against the other accused Abhijit Das under section 406 or 420 of Indian Penal Code (in short IPC) but elements of section 494/ 107 of IPC are against him, and in view of order of this Court the learned Magistrate altered the charge and framed charge under section 494/107 of the IPC against the accused Abhijit Das. Charge under section 494/406/120B of IPC framed against the present accused petitioner was maintained and was not altered. During the trial that followed the Marriage Registrar Smt. Mira Mukherjee did not appear to give evidence in Court. Thereafter, the learned Magistrate by judgment and order dated 13.6.02 acquitted the accused persons. The opposite party, the complainant challenged the order of acquittal in an appeal being C.R.A No. 232/02. The Hon'ble Justice G.C. De, by his judgment and order dated 23.2.04, set aside the order of acquittal and sent back the case on remand for retrial.

(3.) Mr. Mukherjee submitted that this Court at the time of remanding the case for retrial directed that after keeping the evidence on record the learned Magistrate shall give opportunity to the complainant to prove the documents which are already on record and to mark those as exhibits in accordance with law. The learned Magistrate shall take appropriate steps found necessary under section 311 of the Criminal Procedure Code (in short Code) for just decision of the case. Appropriate opportunity is to be given to the defence for adducing defence witness, including document, if found necessary. If any of the witness produced for further evidence liberty is to be given to the parties for cross- examination and on completion of evidence and after examination of accused under section 313 of the Code and after production of witnesses under section 311 of the Code and after defence evidence, argument is to be heard and thereafter learned Trial Court shall pronounce judgment. This Court in C.R.A. No. 232/02 made it clear that opportunity should be given to the complainant to prove the documents which are already on record and there was no scope to introduce any new document. But the complainant now wants to introduce a new document, that is, original Marriage Register. Mira Mukherjee is a new witness and she cannot be examined and this Court while disposing of C.R.A. No. 232/02 did not give any liberty to complainant to examine any new witness. After order of acquittal and on the basis of order of this Court remanding back the matter to Trial Court for fresh decision, the witness Mira Mukherjee cannot be examined during retrial. She is completely a new witness and cannot be permitted to be examined by complainant for filling in lacuna of prosecution case. The order of the learned Magistrate is wholly illegal and against the direction of this Court. The said order should be set aside and the evidence of Mira Mukherjee should be expunged and the order of the learned Magistrate directing production, of original marriage register should be set aside.