Decided on February 21,2018

STATE OF ASSAM And ANR Respondents


Ajit Borthakur, J. - (1.) This a petition under section 482 read with Section 397/401 Cr.P.C., whereby the petitioner/accused has prayed for quashing of an order, dated 09.04.2015, passed by the learned Judicial Magistrate, 1st Class, kamrup (M) at Guwahati in G. R. Case No. 10905/2011 rejecting the prayer for recalling the informant/respondent No. 2 for further cross-examination.
(2.) The petitioner's case, in a nutshell, is that the respondent No. 2 filed an F.I.R., on 13.11.2011, before the Officer In-Charge, Fatasil Ambari P.S. alleging that on that day at about 12 noon, while their three labourers were digging a canal on the side of their compound wall, the petitioner rebuked them and asked them to stop work. Witnessing the incident, the respondent No. 2 intervened, but in turn, the petitioner rebuked her uttering slang words and gave her a push. Based on the aforesaid F.I.R., Fatasil Ambari P.S. Case No. 440/2011 u/s 294/354/506 IPC, dated 13.11.2011, was registered and after completion of investigation laid a charge-sheet under the aforesaid Sections of IPC. The learned Magistrate framed charges accordingly and trial commenced. During trial, the respondent No. 2/informant, in her evidence as P.W.-1 has made exaggerations of the incident, which are stated to be apparently contradictory to her statement given u/s 161 Cr.P.C., before the Investigating Officer. The material contradictions were, however, omitted to be brought to her (P.W.-1) notice in cross-examination. Therefore, by petition No. 151/2015, dated 09.04.2015, filed u/s 311 Cr.P.C., the petitioner prayed for affording an opportunity to further crossexamine the informant (P.W.-1) so as to highlight the material contradictions between her evidence and her statement given u/s 161 Cr.P.C. The learned Magistrate, however, rejected the said petition vide the impugned order, dated 09.04.2015.
(3.) The aforesaid impugned order reads herein below extracted- "09.04.2015 Accused is present. No PWs have turned up. Issue fresh summon to PWS. Seen pet. No. 151 filed by the Ld. Defence counsel u/s 311 Cr.P.C., praying for recalling the PW. 1 for further examination. Heard both sides. The learned counsel submitted that few vital questions were left, to be asked to the PW. 1 and hence they have prayed for resummoning the PW. 1. But in the said petition the learned defence counsel had not mentioned the questions of points on which the PW. 1 need to be examined further. Hence, I do not find any justification to re-summon the PW. at this stage. Pet. No. 151 is hereby rejected. Fixing 17.06.2015 for P.Ws.";

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