DIPANSU SEKHAR DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) ON the complaint of the opposite party no. 2 the petitioner was being tried before the learned CJM, Tamluk in connection with C. R. Case No. 812 of 2003 to answer the charges under Section 465/468/471 IPC. It was a complaint case triable through warrant procedure. The procedure for trial has been laid down in Section 244, 245 and 246 of the Cr. P. C. The learned Magistrate recorded evidence before charge of three witnesses including the complainant. 22nd August, 2007 was the date fixed for consideration of charge. On that day the learned Magistrate found that on the basis of the evidence before charge a prima facie case under Section 465 IPC could be made out. Offence under Section 465 IPC is triable through summons procedure. Other offences alleged and in respect of which the learned Magistrate could not find out any evidence prima facie were triable through warrant procedure. The learned Magistrate in such circumstances examined the accused under Section 251 Cr. P. C. in view of the offence under Section 465 Cr. P. C. being triable through summons procedure, and an order to that effect was made on 22nd August, 2007. Then the learned Magistrate proceeded to cross examine the witnesses. Three witnesses were cross-examined in full on 28th February, 2008. At that stage complainant took out a petition under Section 246 (6) of the Cr. P. C. for examination of three persons, namely Sudhangsu Sekhar Das, Himangsu Sekhar Das and Bibhangsu Sekhar Das on the ground that their evidence is necessary for just decision of the case. Learned Magistrate upon hearing the learned counsels for both the parties and upon careful perusal of the materials on record was of the view that examination of these three persons is necessary to arrive at a just decision of the case. Then by allowing the petition of the complainant which was purportedly filed under Section 246 (6) of the Cr. P. C. the learned C. J. M. fixed 13th June, 2008 for examination of the said three persons. It is this part of the order dated 29th of March, 2008 allowing the prayer of the complainant for examination of the three persons which is now under challenge at the instance of the accused --petitioner.

(2.) MR. Debabrata Acharya, learned advocate for the petitioner raised two-fold submissions. The first submission is that the learned Magistrate was not sure as to whether he was trying the offence under summons procedure or warrant procedure. Trial commenced according to warrant procedure in terms of which three witnesses were examined before charge. The complainant did not examine any further witness before charge. The learned Magistrate found that no prima facie case was made out except the one under Section 465 IPC which by itself is triable to summons procedure. The learned Magistrate adopted a novel method by converting the case from warrant triable to summons triable and instead of framing formal charge under Section 465 IPC he resorted to the provision of Section 251 Cr. P. C. and examined the accused under that Section with respect to the charge under Section 465 of the Cr. P. C. This is said to be illegal. The second submission which has been strenuously made is that allowance of the prayer under Section 246 (6) Cr. P. C. was improper. It is the accused who has to elect as to which of the witnesses he wants to cross examine and provision of sub-section (6) of Section 246 cannot be taken aid of by the complainant.

(3.) I have heard Mr. S. S. Roy, learned advocate appearing for the State of West Bengal. None appears for the opposite party no. 2, complainant who did not appear despite service effected on 24-06-2008.