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2015 Supreme(Gau) 178
IN THE HIGH COURT OF GAUHATI
M.R. Pathak, J.
Debnath Mahara – Appellant
Vs.
State of Assam – Respondent
Crl. Rev. Pet. No. 500 of 2012
Decided On : 20-03-2015
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: G.C. Phukan and S.K. Singh
For Respondents/Defendant: K. Munir, Addl. PP
Headnote:
Indian Penal Code, 1860 - Section 302 - Code of Criminal Procedure, 1973 – Sections 311 and 313 – Practice and Procedure - Recalling Investigating Officer - Re-examination - Main contention of accused petitioner is that evidence of prosecution was already closed and if Investigating Officer is recalled for his re-examination under Section 311 of the IPC, at that stage, it would cause prejudice to him - Accused petitioner contended that after examination of prosecution witnesses in chief, they were thoroughly cross examined and after closing of evidence of prosecution witnesses, they were accordingly discharged – Thereafter dates fixed Trial Court for examination of accused petitioner under Section 313 of Cr.P.C. and that stage, prosecution filed petition under Section 311 IPC for re-examination of Investigating Officer only to fill up the lacuna in the case of prosecution, which is not permissible under law - Held, While re-examining Investigating Officer by prosecution in case before learned Trial Court, the accused petitioner shall also get the chance to cross-examine the said witness again and to rebut that new/fresh evidence brought on record against him - In this regard the Honble Apex Court in case of Rameshwar Dayal & Ors. v. State of U.P. reported in (1978) 2 SCC 518 (AIR 1978 SC1558), has settled law that - Whenever any additional evidence is examined or fresh evidence is admitted against accused, it is absolutely necessary in interest of justice that accused should be afforded a fair and reasonable opportunity, to rebut that evidence brought on record against him - Court opinion that Additional District & Sessions Judge did not commit any illegality in passing impugned order in Sessions Case in re-calling Investigating Officer, exercising his power - Application Dismissed.
M.R. Pathak, J.
1. The petitioner is an accused of an offence under Section 302 of the Indian Penal Code (IPC, in short) for causing death of one Nanki Panika on 25.09.2010 and for that purpose trial case, being Sessions Case No. 389 (N) 10 is pending against him before learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar in the District of Nagaon, Assam. In order to bring home the said charge of Section 302 IPC against the accused petitioner, the prosecution has examined 13 (thirteen) prosecution witnesses, including the Investigating Officer of the case, in the said Sessions Case No. 389 (N) 10 and after their cross examination by the defence, they were accordingly discharged. After closing of the prosecution evidence, the said case was fixed for examination of the accused, the present petitioner under Section 313 of the Code of Criminal Procedure (Cr.P.C. in short) as required and 28.08.2012, 10.09.2012 & 24.09.2012 were the dates fixed for the said purpose.
2. The prosecution on 24.09.2012 preferred a petition under Section 311 of the Cr.P.C. before the learned Trial Court for recalling the Investigating Officer of the case for his re-examination. The prosecution in the said application under Section 311pleaded before the learned Trial Court that the evidence of prosecution witnesses revealed that there is some contradiction about the place of seizure and therefore, re-examination of the Investigating Officer is very much required to clear the point of seizure of the Dao' (weapon of assault) for the ends of justice and for right decision of the case. The petitioner submitted written objection against prosecution's said petition under Section 311 Cr.P.C. submitting that if the same is allowed, it will cause prejudice to him.
3. However, learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar, after hearing the parties, vide his order dated 05.10.2012 passed in Sessions Case No. 389 (N) 10 allowed the said application of the prosecution under Section311 Cr.P.C. and re-called the Investigating Officer for the purpose of his re-examination on 18.10.2012.
4. Hence, being aggrieved, the accused petitioner has filed this Criminal Revision Petition under Sections397/401 Cr.P.C. read with Article 227 of the Constitution of India praying for setting aside the impugned order dated 05.10.2012 passed by learned Additional District & Sessions Judge, (FTC), Hojai, Sankardev Nagar in said Sessions Case No. 389 (N) 10.
5. Heard Sri Golap Chandra Phukan along with Sanjay Kumar Singh learned counsels for the petitioner. Also Heard K. Munir, learned Additional Public prosecutor, Assam for the State Respondent.
6. The main contention of the accused petitioner is that evidence of prosecution was already closed and if the Investigating Officer is recalled for his re-examination under Section 311 of the IPC, at that stage, it would cause prejudice to him. The accused petitioner contended that after examination of prosecution witnesses in chief, they were thoroughly cross examined and after closing of the evidence of prosecution witnesses, they were accordingly discharged. Thereafter, 28.08.2012, 10.09.2012 & 24.09.2012 were the dates fixed by learned Trial Court for examination of the accused petitioner under Section 313 of the Cr.P.C. and that stage, the prosecution on 24.09.2012 filed the petition under Section 311 IPC for re-examination of the Investigating Officer only to fill up the lacuna in the case of prosecution, which is not permissible under the law.
7. The petitioner submitted that in the petition under Section 311 Cr.P.C. for recalling of the Investigating Officer, the prosecution's only contention was that there was a discrepancy in the prosecution evidence about the place of seizure of the 'Dao'. But there was no admission from the side of the prosecution, in clear term, that there was a statement, which needs to be proved. According to the accused petitioner, there was no such reason and
