KASHINATH GOSWAMI Vs. BISHNUPADA MUKHERJEE
HIGH COURT OF CALCUTTA
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(1.) IN this revisional application under Section 387 read with section 401 and 482 of the cr. P. C. filed by the complainant petitioner order dated 16. 6. 80 passed by judicial Magistrate, 2nd Court Asansol in case Ni, c/1505 of 1976 arising out of a complaint under sections 403 and 406 I. P. C. is being assailed. The offences were alleged to have committed in respect of bus built on Tata Mercedes chasis bearing no. BHR 8292, hereinafter to be referred to as the bus. By the order impugned the learned magistrate rejected complainant's petition for direction on the accused to produce the bus in court for, identification by the complainant. After some witnesses of. the complainant other than the complainant himself were examined by the order impugned the learned Magistrate. on the prayer of the accused directed examination of the complainant before other witnesses' following the decision reported in 51 cr. L. J. 115.
(2.) CHALLENGING the correctness of the order impugned Mr. Kashi Kania Moitra the learned Advocate for the petitioner points out the difference in language used in Section 244 of the Code of 1973 with parallel provisions of section 252 of the old code. 244. Evidence for prosecution (1) When, -in any warrant-case instituted otherwise than on a police report the accused appears of is brought before a Magistrate, the Magistrate shall proceed to hear the procecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. 252. Evidence for prosecution.- (i) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2) The Magistrate shall ascertain, from the complainant or other-wise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.
(3.) HE contends that the difference in the text and terms of the two sections indicates a well calculated plan. Under the section 252 of the old Code the magistrate himself was to hear the complainant's case while under the section 242 of the present Code the Magistrate is to hear the prosecution consisting of the Complainant and others on his side. On the basis of words used, in Sec. 244 (2) he contends that the Magistrate's duty is to take evidence as produced by the prosecution. He contends that the Magistrate has not discretion to exercise in this behalf and interfere with the order in which the prosecution may choose to examine its witnesses. He argues that under section 242, the Magistrate cannot compel the complainant to appear for his examination; of course he has some power under section 311 of the Code; in this connection he refers to section 135 of the evidence act which runs as follows:-
"the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court. " On the basis of the decision in Prithvi Nath vs. R. C. Kaul, reported in 1975 Cr. L. J. 216 he argues that in the first place the regulation of evidence must be according to the law or practice which is for the time being in force. Secondly this provision will apply only in the absence of any law to the contrary. The general practice in criminal courts is that the evidence is taken in the order in which it is produced by the prosecutor and seldom the court interferes with this order. That this practice should be adhered to in criminal cases is even more important for the reason that in a criminal case the entire brunt of proving a prosecution case falls on the prosecutor and it is therefore for him to choose and devise ways and means of proving a case against an accused beyond any doubt. If the courts start dictating a change in the order, it may lead to serious prejudice and thereby to serious miscarriage of justice.;
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