IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CRIMINAL REVISIONAL JURISDITION APPELLATE SIDE PRESENT:

THE HON’BLE JUSTICE UDAY KUMAR CRR 446 of 2024 Milan Thapa @ Majhi @ Hari Majhi -Vs.-

The State of West Bengal and Anr.

For the Petitioner : Mr. Arnab Saha Mr. Md. Shoaib Akhtar For the State : Mr. Nilay Chakraborty Mr. Sourav Ganguly Hearing concluded on : 23.07.2025 Judgment on : 25.07.2025 Uday Kumar, J.:-

1. The present revisional application, CRR 446 of 2024, has been preferred by the petitioner, Milan Thapa @ Majhi @ Hari Majhi, assailing the legality, regularity, and propriety of Order No. 49 dated October 09, 2024, passed by the Learned Additional District and Sessions Judge, Kurseong, in Session Case No. 08 of 2020. By the impugned order, the Learned Trial Court rejected the petitioner's prayer to recall and re- examine witnesses (PW1, PW3, PW4) under Section 311 of the Code of Criminal Procedure, 1973 (now Section 348 of the Bharatiya Nagarik Suraksha Sanhita 2023). The petitioner contends that this rejection is mechanical, causes serious prejudice, denies his fundamental right to a fair trial, and breaches settled positions of law.

2. The genesis of the case lies in Mirik Police Station Case No. 18 of 2017, dated March 06, 2017, initiated on a complaint by opposite party no. 2, Praduman Tanti. It was alleged that the petitioner took his son, Basu Tanti, without the consent of his lawful guardian and kept him in Sikkim. Consequently, a case under Sections 363 (kidnapping) and 370 (trafficking) of the Indian Penal Code, 1860, was registered against the petitioner. Following an investigation, Charge Sheet No. 06 of 2018 dated February 5, 2018, was filed. The trial, Session Case No. 08 of 2020, under Sections 363/370 of the Indian Penal Code, 1860, subsequently commenced. It is an admitted fact that all prosecution witnesses have already been examined in the said sessions case. Furthermore, the statement of the accused under Section 313 Cr.P.C. was recorded on August 19, 2024, and the trial was thereafter fixed for adducing defence evidence.

3. Subsequently, the petitioner filed two applications on September 9 and September 20, 2024, requesting the recall and re-examination of Prosecution Witnesses 1, 3, and 4. These applications meticulously specified precise questions to be posed to the witnesses, primarily aimed at clarifying crucial details surrounding the complaint's origin, exploring whether the complainant had previously asked the accused to educate his son, and inquiring about attempts to withdraw the case. The petitioner asserted that these questions were essential to bring important, relevant, and material facts onto the record that could not be elicited previously due to "haphazard" trial proceedings or "inadvertence."

4. The Learned Trial Court, vide the impugned Order No. 49 dated October

09, 2024, rejected these applications. The grounds for rejection articulated by the Learned Trial Court were primarily:

i. that all prosecution witnesses had already been examined;

ii. that the statement of the accused under Section 313 Cr.P.C.

had been recorded; and iii. that the applications were merely an attempt to "justify the reply of the question given by the accused during his examination under Section 313 Cr.P.C."

5. The Trial Court further concluded that the application was made to "fulfil the lacunae either in the prosecution evidence or in the defence evidence." The Learned Trial Court, finding the petition "devoid of merit," proceeded to reject it, holding that such an application should only be allowed if necessary for a just decision.

6. Mr. Arnab Saha, Learned Advocate appearing for the petitioner, vehemently assailed the impugned order, submitting that it is erroneous both in law and on facts, arbitrary in nature, and has prejudiced his fundamental right to a fair trial, guaranteed under Article 21 of the Constitution of India, besides violating established legal principles. He further argued that the tri