SUDAM CHANDRA ROY Vs. GOBINDA MALLICK

JUDGEMENT

(1.) This Rule is directed against the order dated 8-2-1984 passed by the learned Metropolitan Magistrate, 13th Court, Calcutta in G.R. Case No. 1642 of 1980. It appears that the opposite party No. 1 has been charged under Section 380 Indian Penal Code for allegedly stealing an electric motor belonging to the defacto -complainant. The petitioner contends that on an earlier occasion he get the motor repaired by MIs. Roy & Co. and that he holds a receipt/memo to show it. An application under Section 311 of the Cr.P.C. was made on 13-6-81 praying for allowing the prosecution to summon the proprietor of the same Roy & Co. for proving the factum of the repair of the motor. On a consideration of the objection raised to this prayer and other circumstances of the case the learned Magistrate has rejected the application. Hence this revisional application.

(2.) It is urged from the side of the petitioner that if the desired witness is examined and the memo brought into evidence that will go a long way in a just disposal of the theft case.

(3.) From a perusal of the order passed by the learned Magistrate it appears that alt the circumstances relating to the introduction of the evidence of repair at this late Stage was taken into account by the learned Magistrate. He mentions in his order that the Investigating Officer did not seize the memo presumably because it was not produced before him and as also no mention of this fact of repair was made to him when he gave his statement under Section 161 Cr.P.C. to him. He mentions again that even though the petitioner was examined as a witness for this case on 29-1- 81 the fact of repair was not mentioned by him either in his examination-in-chief or in his cross examination. Since this fact of repair and incident of the memo came to be mentioned before him after the lapse of 2 and a half years after the institution of this case the learned Magistrate felt that the fresh evidence was being sought to be introduced to fill up the lacuna in prosecution evidence. He felt that if permission was given to the petitioner at such a late stage that would cause very serious prejudice to the accused. It is for those reasons that the learned Magistrate rejected the prayer of the petitioner.