IMPORTANT POINT
Power u/s 311 shall not be exercised if the application has been filed as an abuse of the process of law.

JUDGMENT :

S. ABDUL NAZEER, J.

Leave granted.

2. The appellant-Swapan Kumar Chatterjee has challenged the order dated 04.05.2017 in CRR No. 440/2015 passed by the High Court at Calcutta, whereby the High Court confirmed the order dated 05.12.2014 passed by the Trial Court permitting the examination of one witness Mr. H.S. Tuteja.

3. Brief facts necessary for disposal of this appeal are as under:

4. A complaint was lodged by one Mr. P.N. Khanna before the Superintendent of Police, Central Bureau of Investigation (for short ‘CBI’), Economic Offences Wing, Church Lane Calcutta, where the present appellant with others was arrayed as accused in CBI case No. 7/E/83 dated 20.08.1983 under Sections 477A/471/468/420/120B of the Indian Penal Code, 1860. After completion of the investigation, investigating agency filed chargesheet under the aforesaid sections and also under Section 5(1)(c)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 against the appellant and three others. The case was put on trial. Twenty nine prosecution witnesses were examined. The Public Prosecutor filed a petition praying for examination of handwriting expert Mr. H.S. Tuteja, which was allowed and a date was fixed on 24.03.2004 and then to 26.03.2004 for his examination. Prosecution was directed to issue summons to the witnesses well in advance of the date of evidence. However, Mr. H.S. Tuteja failed to appear before the Court due to which Prosecutor further sought time for fixing of a schedule till next day for his examination. This request of the Prosecutor was accepted by the Magistrate with a direction that the schedule is fixed on and from 10.05.2004 to 12.05.2004, and prosecution was directed to summon all the witnesses including Mr. H.S. Tuteja. The said witness yet again failed to turn up. The Prosecutor did not pray for re-issuing of summons and bailable warrant, but a separate petition was filed by the Prosecutor for re-summoning the witnesses including Mr. H.S. Tuteja. Such prayer was considered by the Magistrate as a last chance. From then onwards, whenever a date is fixed for examining Mr. H.S. Tuteja, he would fail to turn up and the prosecution would invariably come up with a petition either praying for time or for adjournment of the matter.

5. Interestingly, this practice has been going on unopposed for a period of thirteen years starting from the year 2004. It is necessary to notice here that the High Court of Calcutta in CRR No. 3436 of 2006 disposed of on 28.07.2011 gave a last opportunity to the CBI to procure attendance of Mr. H.S. Tuteja. It was observed that in case of failure on the part of the CBI to procure his attendance, and the attendance of other witnesses and get them examined, the Trial Court will proceed further with the trial without granting any further adjournment to the CBI keeping in mind that the case is still pending from the year 1985.

6. However, the Trial Court still allowed the prosecution time to present their witness Mr. H.S. Tuteja on 03.02.2012, who by now was nothing short of a creature of fiction and whose presence has been warranted yet unattained for over a decade. Despite summon was duly served upon, he was not present on that date also. Again, the matter was adjourned to 24.02.2012 for his evidence. Even thereafter on several dates, the CBI failed to produce the said witness.

7. Again, the High Court of Calcutta in Criminal Revision Application No. 2696 of 2014 dated 15.09.2014 observed that since the trial is pending in the Trial Court for a long time, all steps must be taken by the Trial Court to conclude the trial as expeditiously as possible, preferably within coming six months.

8. On 25.11.2014, the appellant was examined as DW-1. On the same day the prosecution again filed an application to examine Mr. H.S. Tuteja. This application was allowed by the Magistrate on 05.12.2014 and said order has been confirmed by the High Court.

9. We have heard learned senior counsel and learned ASG appearing fo