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2020 Supreme(Gau) 315
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Manish Choudhury, J.
Ahmed Musa Laskar S/o Late Isamail Ali Laskar – Petitioner
Versus
The State of Assam, Represented by the Public Prosecutor and Anr. – Respondents
Crl.Rev.P. 238 of 2019
Decided On : 02-06-2020
Advocate Appeared:
For the Petitioner: Mr. A M Barbhuiya
The court emphasized the essentiality of evidence to the just decision of the case and the limitations on the power to recall and re-examine witnesses under Section 311 of the Code.
Headnote:
Section 311 - Criminal Procedure Code - Summary of Acts and Sections: Section 482, Section 397/401, Section 173, Section 498A of the Indian Penal Code, Section 137 and Section 138 of the Evidence Act, 1872, Section 301(2) and proviso to Section 24(8) of the Criminal Procedure Code - The court discussed the provisions of Section 311 of the Criminal Procedure Code and Sections 137 and 138 of the Evidence Act, emphasizing the essentiality of evidence to the just decision of the case. The court also considered the scope and limitations of Section 301(2) and the proviso to Section 24(8) of the Criminal Procedure Code, as highlighted in the case of Rekha Murarka vs. The State of West Bengal and another.
Fact of the Case:
The petitioner challenged an order allowing further cross-examination of defence witnesses. The informant, wife of the accused, sought re-cross-examination of the witnesses after their discharge, which was allowed by the revisional court. The petitioner contested this decision.
Finding of the Court:
The court found that the petition for re-cross-examination did not provide valid grounds for the court to exercise its power under Section 311 of the Code. It emphasized that the power to recall and re-examine a witness should be exercised only if essential to the just decision of the case.
Issues: The main issue was whether the re-cross-examination of defence witnesses was essential to the just decision of the case, as per Section 311 of the Code.
Ratio Decidendi: The court held that the power under Section 311 of the Code should be exercised judiciously and not arbitrarily, and that the burden to establish the case lies with the prosecution. It also emphasized the limitations on the victim's counsel under Section 301(2) and the proviso to Section 24(8) of the Code.
Final Decision: The judgment and order allowing further cross-examination of defence witnesses were set aside, and the case was directed to proceed with the trial.
JUDGMENT :
Heard Mr. A.M. Barbhuiya, learned counsel for the petitioner; Ms. S. Jahan, learned Additional Public Prosecutor for respondent no. 1, State of Assam and Ms. S.B. Choudhury, learned counsel for respondent no. 2.
2. The petitioner, in this criminal petition filed under Section 482 read with Section 397/401, Code of Criminal Procedure, 1973 (‘the code’ and/or ‘the CrPC’, for short), has assailed an order dated 28.05.2019 passed by the Court of learned Sessions Judge, Hailakandi (‘the revisional court’, for short) in Criminal Revision No. 43/2018, whereby, the learned revisional court had set aside an order dated 23.08.2018 passed by the Court of learned Judicial Magistrate, First Class, Hailakandi (‘the trial court’, for short) in G.R. Case no. 700/2013. The revisional court, thereby had allowed further cross-examination of 2 (two) defence witnesses – D.W.1 and D.W.2 -on payment of cost of Rs. 500/-to each of the said 2 (two) witnesses.
3. The facts which are necessary can be stated, in a nutshell, as follows :-
3.1. The respondent no. 2 (hereinafter referred to as ‘the informant’, for easy reference) is the wife of the petitioner (hereinafter referred to as ‘the accused’). The informant alleging acts of cruelty against her by the accused, had lodged a First Information Report (FIR). On receipt of the FIR, a police case was registered and the matter was investigated into. Correspondingly, G.R. Case no. 700/2013 has been registered. On completion of investigation, the Investigating Officer had submitted a charge sheet in due course as per Section 173, CrPC against the accused finding materials to proceed against him for the offence under Section 498A, Indian Penal Code (IPC). On submission of the charge sheet, the learned trial court taking cognizance of the offence, had issued summons for appearance of the accused. On appearance of the accused, a charge under Section 498A, Indian Penal Code (IPC) was framed against the accused and after explaining the charge to the accused, the case proceeded for trial.
3.2. It is submitted by the parties that the trial, on behalf of the State, was conducted by the learned Assistant Public Prosecutor. In due course, the prosecution examined their witnesses and they were duly cross-examined by the defence. After closure of the prosecution evidence, the accused was examined under Section 313, CrPC and when asked, the accused expressed his desire to adduce defence evidence. To disprove the charge made against him, the defence examined 2 (two) witnesses as D.W.1 and D.W.2. The accused examined himself as D.W.1. Both the defence witnesses – D.W.1 and D.W.2 – were examined and cross-examined on 02.06.2018 and after their cross-examination, they were discharged. Having informed the learned trial court by the defence that they did not want to adduce any further evidence, the evidence of the defence side was closed by the learned trial court on 02.06.2018 and the case was posted for argument on 21.06.2018.
3.3. When the case was posted for argument, the informant filed a petition being Petition no. 2345/2018, before the learned trial court with the prayer for allowing the learned counsel, engaged by the informant, to assist the prosecution side. As the petition was forwarded through the learned Assistant Public Prosecutor who expressed his no objection, the said petition was allowed by the learned trial court on 02.08.2018 and the case was posted for argument on 23.08.2018.
3.4. It was on 23.08.2018, a petition being Petition no. 2428/2018, came to be filed by the learned counsel engaged by the informant with the prayer for re-cross-examination of D.W.1 and D.W.2, who were already discharged on 02.06.2018. It is submitted by the learned counsel for the parties that the said petition was forwarded through the learned Assistant Public Prosecutor. The said petition was stated to have filed under Section 311 of the Code. The learned trial court in its order dated 23.08.2018, had observed that the petitio
