AJIT KUMAR NATH Vs. STATE OF TRIPURA

JUDGEMENT

(1.) The instant criminal revision petition is filed by the accused-petitioners who are now facing trial before the Court of learned Judicial Magistrate 1st Class, Amarpur, South Tripura (hereinafter referred to as 'the trial Court') for an alleged offence under Section 498A of the Indian Penal Code (for short 'the Code'). They are also on bail pursuant to the order of the learned trial Court.

(2.) While the trial was almost going to be completed after examination of the prosecution witnesses, the learned Assistant Public Prosecutor filed an application on 28-10-2009 under Section 311 of the Code of Criminal Procedure (for short 'Cr.P.C.') for examining one Sri Tulsi Chakraborty of Gobinda Tilla and another Smt. Padma Debnath of Rangkang, both of P.S. Birganj as prosecution witnesses as their evidences are necessary for ends of justice. The said prayer for examining the prosecution witnesses was objected to by the present accused-petitioners and on 10-11-2009 they filed two applications under Section 311, Cr.P.C. for recalling Smt. Daltina Debnath, Shri Parimal Debnath, Shri Manindra Karmakar and Smt. Sandhya Debnath, P.Ws. 1, 2, 3 and 4 respectively for further examination as due to bona fide mistake and oversight of their advocate at the time of examination of those witnesses certain questions, particularly the questions relating to their previous statement made before the I.O. of the case, were not asked to them. All the applications filed by the learned Assistant Public Prosecutor and the accused-petitioners under Section 311, Cr.P.C. were taken up by the learned trial Court on 10-11-2009 for final disposal and after hearing the learned Counsel for the parties, the learned trial Court partly allowed the prayer of the prosecution for examining Smt. Padma Debnath as a prosecution witnesses and rejected the prayer for examining Shri Tulsi Chakraborty. The learned trial Court also rejected the prayer of the accused-petitioners for recalling the aforesaid P.Ws. 1 to 4 for their further examination observing, inter alia, "Section 311 of Cr.P.C. simply talks about (i) to summons any person as a witness, (ii) to examine any person who is in attendance though not summoned, and (iii) to recall and re-examine any person already examined. Hence in the present case as per my opinion unless the witnesses are re-examined or that new evidence are not revealed, the question of re-cross-examination does not arise at all." It is also observed in the said order, inter alia, "Moreover, it would be commission of a mistake too, on the part of the Court if the petitions of Ld. Counsel for the defence are allowed with no due authority of law." Being aggrieved by the aforesaid order of the learned trial Court dated 10-11-2009, the accused-petitioners have filed the present revision petition.

(3.) Heard Mr. S. Talapatra, learned senior Counsel, assisted by Mr. J. Majumder, learned Counsel for the petitioners and Mr. D. Sarkar, learned Public Prosecutor for the respondent State.