The main legal point established in the judgment is that the discretionary power under section 311 of the Code of Criminal Procedure should be exercised judiciously, and the court should ensure that the petitioners are given the opportunity to adduce evidence to establish their alibi.

JUDGMENT

ananda Kumar Mukherjee, J. - This revisional application under section 401, read with section 482 of the Code of Criminal Procedure, 1973 is directed against order dated 09.01.2020 passed by Learned additional Sessions Judge, First Track Court-II, Howrah, whereby the petition dated 06.01.2020 filed by the petitioners under section 311 of code of Criminal Procedure in connection with Sessions Trial No. 205 of 2012 was rejected.

2. Petitioner no. 1 is the husband of petitioner no. 2, who are facing trial in S.T. No. 205 of 2012 under section 498 a/ 306/ 302 of the Indian Penal Code.

3. In brief, the prosecution case is that Papia Saha the daughter of defacto-complainant Swapan Kumar Sen was married to Haradhan Saha in the year 1995. Initially the defacto-complainant and his family did not recognise the marriage between the Papia and Haradhan Saha as it was an outcome of a love affair. The paternal family accepted the marriage after 7 to 8 months. Papia gave birth a son and a daughter and lived in her husband's house along with petitioner no. 1 the elder brother of the husband, petitioner no. 2 the sister-in-law and Gitabala Saha, her mother-in-law. after passage of time the husband, petitioners and the mother-in-law subjected Papia to physical and mental torture on demand of dowry. On 10.12.2011 the defacto-complainant received an information from his granddaughter that Papia was set ablaze inside a room and rushed to their house. Papia was rescued and admitted at CMRI Hospital Calcutta where she breathed her last on 14.12.2011. Over this incident a police case was started against the husband and inmates of the matrimonial house deceased Papia Saha, where the petitioners are facing trial.

4. It is the case of the petitioners that after framing of charge when the defacto-complainant was being examined as PW-1 suggestion was put to him that on 10.12.2011, that is the date of occurrence, petitioners Uttam Saha and his wife Nandini Saha were not present at the place of occurrence as both of them were attending a medical camp at 'SaaOL' under Dr. Bimal Chhajer. The same suggestion was put to PW-3, the son of the diseased. In course of trial petitioners did not adduce any evidence to establish their alibi, that on 10.12.2011 both the petitioners were not present at the place of occurrence as they had been attending a medical camp at 'SaaOL'. after closure of evidence of the prosecution witnesses, the accused person were examined under section 313 of the Cr. P.C and one witness DW-1, was examined by accused. When the case was fixed up for pronouncing of judgment, the petitioners on 06.01.2020 filed an application under section 311 of Cr. P.C before the jurisdictional court, praying for allowing them to adduce evidence and produce some documents essential for the just decision of the case.

5. after hearing both parties Learned additional Sessions Judge, First Track Court-II, Howrah, by his order dated 09.01.2020 rejected the application filed by the petitioners on the ground that it was for the purpose of filling up of lacuna the prayer was made and it would caused serious prejudice to the prosecution, specially when the petitioner did not file the documents till the conclusion of argument and furthermore such evidence is not essential for the just decision of the case.

6. Petitioners being aggrieved with the impugned order have filed this revisional application praying for setting aside the same. Learned advocate for the petitioner argued that petitioners claimed that they were not present at the place of occurrence and such ground was not made for the first time by way of filling the application under section 311 of Cr. P.C. as such the plea of alibi was taken by the petitioners at the very outset during cross-examination of PW-1 and PW-3, when suggestions were given to the witnesses that on 10.12.2011 the petitioners were attending a 'Heart Care Workshop' under Dr. Bimal Chhajer. It is argued that petitioners' right to produce su