NILAP NAGA AND ORS. Vs. MALATI DEI

JUDGEMENT

(1.) IN a pending criminal case, ICC 377 of 1968 under Section 354, 448 and 323, Indian Penal Code, instituted on 19 -7 -1968, prosecution witnesses (p.ws. 1 to 4) were cross -examined after charge and the prosecution closed on 19 -1 -1970. The case was reposted to 9 -3 -1970 for recording the statement of the accused. On 9 -3 -1970, an application was filed by the accused to recall p.ws. 1 to 4 for further cross -examination. This application was considered by the Court on 20 -3 -1970 and the learned Magistrate passed an order allowing the application in part in so far as it related to p.ws. 1 and 2 and rejected the prayer to recall p. ws. 3 and 4. He further directed that the accused persons do pay Rs. 10/. as costs to be paid to p. ws. 1 and 2. The case was reposted to 18 -4 -1970 for further cross -examination of p. ws. 1 & 2. Thereafter the case was adjourned from time to time on Borne ground or other, the last of such adjourned dates being 3 -1 -1971. It was recorded that day that the parties were present but as the trial Magistrate was transferred the case was to stand over till 5 -2 -1971 for hearing. On 5 -2 -1971, the case was transferred to another Magistrate and he noticed that till then the accused had not deposited in Court Rs. 10/ - as ordered on 20 -3 -1970 towards the expenses of p.ws. 1 and 2. Obviously because of this, steps had not been taken to summon p.ws. 1 and 2 and the case could not proceed. The Magistrate refused to give any further opportunity to cross -examine p.ws.1 and 2 and closed the prosecution case and adjourned the case to 5 -2 -1071 for recording statements of accused. After this order was recorded, the accused persons prayed for half an hour's for depositing Rs. 10/ - towards the cost of witnesses which the learned Magistrate rejected.

(2.) THE accused then made an unsuccessful attempt before the Additional District Magistrate (Judicial), Cuttack to get the case transferred from the file of the Magistrate. Thereafter, the statements of the accused persons were recorded and on 10 -7 -1971, the case was posted to 28 -7 -1971 for examination of defence witnesses. The accused thereupon filed a list of defence witnesses to be examined which contained amongst others the names of p.ws. 1, 2 and 3. It is not clear from the records as to when this list was flied but summons to these persons had been issued only on 27 -7 -1971. On the next day when the case was put up, no defence witness was present. The learned Magistrate discovered the list of witnesses filed by the defence contained the names of p.ws. 1, 2 and 3 and therefore called upon the defence to substantiate how it is entitled to call as its witnesses persons who had already been cross -examined by it. After hearing both parties the learned Magistrate by his order dated 2 -8 -1971 rejected the prayer of the defence to call p.ws. 1, 2 and 3 as its own witnesses. It is against this order that the present revision application has been filed.

(3.) IT is not disputed that p.ws. 1, 2 and 3 in this case had been cross -examined by the defence after charge. While furnishing the list of defence witnesses to be summoned for examination which list included the names of p.ws. 1, 2 and 3, the defence had not furnished any ground to convince the Court as to why the further examination of p.ws. 1, 2 and 3 is necessary. Indeed, as appears from the order -sheet dated 2 -8 -1971, there is nothing to indicate in the list filed by the defence that it contained the names of some of the prosecution witnesses. The Court evidently thought that those were the names of the defence witnesses who were to be summoned for the first time and issued summons, and when the truth came to light this order was recalled. The learned Magistrate thereafter heard both parties at length and passed a well -reasoned order rejecting the defence prayer to summon p.ws. 1, 2 and 3. During the course of bearing it appears to have been urged before the learned Magistrate that the only ground for summoning p.ws. 1, 2 and 3 for further cross -examination is that after charge they could not be properly cross -examined. The mere fact that it might be possible from further cross -examination of the prosecution witnesses to extract from them some more material which might be advantageous to the defence is not a sufficient ground to recall such witnesses but so far as this case is concerned, an opportunity was given to the defence to recall p.ws. 1 and 2 for further cross -examination subsequent to their discharge after cross -examination after charge. On 19 -1 -1970, after the last witness examined before charge had been cross -examined after charge and discharged, the case was posted to 9 -2 -1970 for recording the statement of the accused. On 9 -2 -1970, the case (could not be taken up as the Magistrate was on casual leave and it was reposted to 9 -3 -1970. It was on 9 -3 -1970 that an application was filed on behalf of the accused to recall p.ws. 1 to 4 for further cross -examination. This application was considered on 20 -3 -1970 and the learned Magistrate for reasons stated by him allowed the defence to recall only p.ws. 1 and 2 for cross -examination and directed payment of Rs. 10/ - as costs to be paid to p.ws. 1 and 2. The defence lost this opportunity due to its own default in not depositing this amount.