IMPORTANT POINT
Section 311 of Cr.P.C. empowers the court to summon or recall witnesses if their evidence appears to be essential to the just decision of the case. The court's discretion in exercising this power should be guided by the necessity for the application of judicial mind and the requirement of justice.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revision has been preferred against an order dated 17.10.2019 passed by the Learned Additional Chief Judicial Magistrate, Kalna in G.R. Case No. 272/2004 arising out of P.S. Case No. 60/04 dated 27.05.2004 under Sections 326/34 of I.P.C.

2. The petitioners state that one Sk. Rasidul filed a written complaint before the Officer-in-Charge Monteswer at 1 p.m. on 27.05.2004. After receiving the alleged complaint, the Officer-in-Charge started Monteswar P.S. Case No. 60 of 2004 dated 27.05.2004 under Sections 326/34 I.P.C. The investigation resulted in a final report (FRT).

3. Vide order dated 19.04.2005 upon hearing the ‘Naraji’ petition, the Learned S.D.J.M. directed S.P. Burdwan for reinvestigation in the above case.

4. The reinvestigation ended in a charge sheet but the trial has not been concluded till date.

5. After completion of the examination all of the prosecution witness and examination of the petitioners under Section 313 of the Code of Criminal Procedure Code, the case was fixed for argument.

6. The petitioner states that after a long gap, the opposite party has filed an application under Section 311 of the Cr.P.C.

7. The Learned Judge was pleased to hear the application and pass an order to the recall the prosecution witnesses on 17.10.2019.

8. It is submitted by the petitioner that the Learned A.C.J.M. failed to appreciate that the provision under Section 311 of the Code of Criminal Procedure cannot be invoked to fill up the lacuna in the prosecution case.

9. Hence the revision.

10. The order under revision is reproduced here:-

“GR 272 of 04

Order No. 67

Dt. 17-10-2019

Ld. APP is present.

Out of 3 accused on CB, one accused namely Saiful Mondal is present and the other two accused are absent by petition.

This is a fifteen years old case. At the stage of argument, on 15-10-2019, Ld. APP filed a petition u/s 311 of Cr.P.C. praying for recall of PW1 as well as for examination of CSWs 7, 8, 9 being medical witnesses and of Sri R. Bhattacharya Ex-SDPO, Kalna, being the last IO of the instant case. Having heard both the sides at length on 15-10-2019, I take up the record today for passing order.

The main dispute between the adversaries, relates to summoning CSWs 7, 8 and 9, all being medical witnesses. The record shows that evidence of CSWs 7 to 9 and 11 to 12 stood closed on 10-06-2019. But it is clear from the order sheet that the said witnesses were not summoned in compliance with the immediately preceding order dt. 17-04-2019. Hence closure of evidence owing to non-appearance of witnesses on the appointed day imports manifest irregularity. Further, as contended by Ld. Counsel for the accused, Ld. APP submitted on 17-04-2019 that he did not intend to produce his remaining witnesses. But it is settled position of law that “irresponsible act on the part of the Government Advocate, who gave up witness when he was in attendance, cannot be allowed to be made a ground so as to curtail the powers of the court u/s 311 IPC or to defeat the cause of justice.” [Bhim Sen Vs State of H.P. 2004 Cr.L.J 3992]. Although in the instant case, the witnesses in question were not in attendance, the irresponsible submission of Ld. APP purportedly made on 17-04-2019 cannot, in the same analogy, tie the hands of the court. The paramount question to be considered is whether the testimony of the witnesses in question appears to this court to be essential to the just decision of the case. This is a case of acid burning and given the fact that there is already evidence of ocular witnesses including that of the victim on record, the evidence of medical witnesses seems to be indispensable for effective adjudication of the case. It is a cardinal principle of jurisprudence that procedural law is the handmaid of substantive justice and none can have a vested right in the form of procedure. Hence, in spite of the question of delay, I think that summoning the medical witnesses at this stage, for the sake of just and proper d