The essentiality of recalling a witness for the just decision of the case and the need for judicious and careful exercise of power under Section 311 of the Code of Criminal Procedure, 1973.

SHIVAKANT PRASAD, J.

1. Being aggrieved by the order dated 18th May, 2017 passed by the learned Special Judge, 1st Court, Hooghly in Special Case No. 2 of 2015, arising out of Mogia Police Station Case No. 316 of 2014 dated 20.08.2014 under Section 7 of the Prevention of Corruption Act, 1988, rejecting thereby the prayer of the Public Prosecutor in-charge to recall the prosecution witness PW 1, the petitioner has preferred this application under Section 482 of Cr.P.C. read with Article 227 of the Constitution of India.

2. Shorn of unnecessary details, the petitioner’s case is that he runs a business unit under the name and style of “Shyama Ma Moulders” who approached the opposite party no. 2 the then Manager of Allahabad Bank, Adisaptagarm Branch, Hooghly in 2014 and applied for the loan under the Government Scheme “PMEGP” but the said Manager demanded some illegal gratification for sanction of the aforesaid loan. In order to get the loan the petitioner paid a further sum of Rs. 25,000/- of 50 numbers of 500 denominations of old currency on 20.8.2014 but the Manager declined to sanction the loan. So, the petitioner lodged a written complaint against the opposite party no. 2 on 20.8.2014 and Mogra Police Station Case No. 316 of 2014 dated 20.8.2014 under Section 7 of the Prevention of Corruption Act, 1988 was registered for investigation.

3. It is submitted that while in police custody, pursuant to the statement of opposite party no. 2, police seized documents during investigation and on completion of investigation, the I.O. submitted Charge-sheet being C.S. No. 73 of 2015 dated 20.3.2015 under Section 7 of the Prevention of Corruption Act, 1988 against the opposite party no. 2. Charge under Section 7 of the Prevention of Corruption Act, 1988 was framed against the opposite party no. 2 on 01.12.2015 to which he abjured his guilt and claimed a trial. During trial, the petitioner was examined and cross-examined in full on 02.08.2016.

4. Mr. Tapash Kumar Ghosh learned Advocate for the petitioner alleged that Mr. Nazibul Islam, Public Prosecutor did not perform his duty as he was gained over by the opposite party no. 2 as it is evident from the examination in chief of the petitioner whereas the petitioner wanted to disclose the facts of the prosecution case through his evidence in chief but the said Pubic Prosecutor did not allow him to utter a single word and defence Advocate was given advantage to complete the cross-examination of PW 1 as if nothing remained in the prosecution case and since no witness was available on and from 02.9.2016 to 14.12.2016, the case was adjourned to the next date on 15.12.2016 but the Public Prosecutor was absent due to his serious illness. Thereafter, Mr. Bhaskar Banerjee was engaged as Public Prosecutor in charge to conduct the trial on behalf of the prosecution and the next date was fixed on 21.01.2017 for recording evidence of CSW Nos. 2, 3, 4 and 5 but Mr. Banerjee also failed to appear and the case was fixed on 22.02.2017. On request of the petitioner, Mr. Banerjee filed an application for recall of PW 1 under Section 311 of the Code of Criminal Procedure, 1973 on 22.02.2017 but on 23.02.2017, when the said petition was taken up for hearing, he did not attend the hearing inspite of repeated requests of the petitioner, though he had attended other courts to conduct cases. It was brought to the notice of the learned Trial Court by learned defence lawyer and after hearing him, the Trial Judge fixed the next date on 17.4.2017 for order.

5. Mr. Ghosh argued that as a matter of fact due to lack of sincerity, honesty and professional sanctity, learned Public Prosecutor in charge practically allowed the petition under Section 311 of the Code of Criminal Procedure to be rejected on 18.5.2017 by the learned Trial Judge as reflected from the order impugned.

6. Then the petitioner requested Mr. Banerjee to challenge the said order by filing a revisional application but he assured that the same has been