- (1.) THIS revisional application is filed at the instance of Bidhubhusan Dhara, the complainant in C.R. No. 90 of 2000 initiated by him in the Court of the learned Judicial Magistrate, 1st Class, Arambagh, Hooghly, against the opposite parties for committing offences under sections 147/341 /342/406/ 425/504/536(2)/ 120B/34 of the Indian Penal Code and is directed against the judgment dated 16.12.2009 whereby the opposite parties were acquitted from the charges. The complainant has come up with this application challenging the legality, validity and propriety of the judgment passed by the learned Magistrate on 16.12.2009 mainly on the grounds: (i) that the learned trial Court did not give the petitioner/complainant any opportunity to get himself and his witnesses examined and cross-examined in course of trial; (ii) that the learned trial Court erred in coming to a conclusion that the complainant failed to establish the case against the opposite parties simply because the complainant and the witnesses, examined before charge, did not make themselves available for the purpose of cross- examination after charge; (iii) that the judgment being otherwise bad in law, is liable to be set aside and an order of retrial and/or re-hearing of the acquitted accused be passed.
(2.) THIS case appears to be a glaring example where Court finds itself helpless in the matter of disposing of criminal case quickly and provides the parties the fundamental right to speedy trial. Peculiarly enough, the petitioner herein is the complainant of the case initiated by him against the opposite parties. The case was initiated in the year 2000. Charge against the opposite parties was framed on 06.02.2008. Through out this long period of eight years, the complainant failed to make himself and his witnesses available before the Court for the purpose of examination and cross-exarnination before the charge. It may be noted here that it was a warrant of procedural case where Court was supposed to take evidence before framing charge in view of section 245 of the Code of Criminal Procedure. After framing of charge on 06.02.2008 the petitioner/complainant was given as many as three adjournments consecutively for making himself and the witnesses, examined before charge, available for their cross-examination after framing of charge. In view of subsection (6) of section 246 of the Code of Criminal Procedure Magistrate was supposed to cross-examine the complainant and the witnesses, who were examined before charge, first of all and, thereafter, to issue summons or ask the complainant to bring other witnesses if he wants to depose. Since the complainant failed to produce any witness including himself after framing of charge on three consecutive dates, the learned Magistrate was left with no option but to deliver the judgment on the basis of evidence recorded by it. It is pertinent to mention here that before closing of the case, the learned Magistrate not only granted adjournments with caution but imposed costs twice. Mr. Mahato, learned Advocate appearing on behalf of the petitioner/ complainant, submits that his client ought to have been provided with sufficient opportunities to be heard. He also submits that since the opposite parties did not opt to cross-examine the complainant and his witnesses before framing of charge, the learned trial Court ought to have accepted the evidence of the complainant and the witnesses examined before charge sacrosanct. In support of his contention, Mr. Mahato, learned Advocate for the petitioner, refers to a decision of the Hon'ble Apex Court in Ajoy Kumar Ghose v. State of Jharkhand & Ann, reported in (2009) 14 SCC 115. Upon careful perusal of the judgment referred to by Mr. Mahato, learned Advocate for the petitioner, it appears that the Hon'ble Apex Court reiterated its view of the established law that right to cross-examination is salutary right of the accused person and it is to be protected. In that case, the question before the Hon'ble Apex Court was whether an accused in a criminal case had any right to cross-examine the complainant and his witnesses before framing of charge or not. The entire scenario of that case and that of this case is quite different. The point raised before the Hon'ble Apex Court as well as this Court are completely different in nature. So, I find that the decision referred to by Mr. Mahato does not help the petitioner in any manner. The provisions of section 246 of the Code of Criminal Procedure lays down the procedure to be adopted by a Court in a warrant procedure case filed on a complaint. According to the provisions laid down therein, after framing of charge when Court requires to cross-examine witnesses of the complainant already examined before charge, it may direct the complainant to bring those witnesses and in view of sub-section (6) of section 246 of the Code of Criminal Procedure those witnesses are to be placed for cross-examination first of all and, thereafter, other witnesses, if so requires, to be asked to be present for the purpose of examination and cross-examination. In the instant case, the learned Magistrate made it very clear in its order dated 06.02.2008 that the Court wanted to cross-examine the witnesses already examined before charge arid, accordingly, directed the complainant to appear on the next date with witnesses, who have deposed earlier, for cross-examination. The record shows that the complainant has neither acted fairly nor diligently. He filed application for adjournments on several occasions and that too was allowed by the Court with great leniency ignoring the amended provisions of section 309 of the Code of Criminal Procedure. Even the Court imposed cost for adjournments but the complainant did not take it seriously. The Court was left with no option but to close further examination of the witnesses and ask the accused persons to face examination under section 313 of the Code of Criminal Procedure and, thereafter passed the order impugned.
(3.) THERE is nothing illegality, impropriety and incorrectness on the part of the learned Magistrate in doing so. As far as the impugned judgment is concerned, which has been challenged in this revisional application, first of all, this Court wants to mention that scope of this Court in a criminal revision against an order of acquittal is very limited. This Court can interfere only when there is glaring mistake or error in the fundamental principles of law, has occasioned miscarriage of justice. In the instant case, I find the learned trial Court has taken out the petitioner's case with great care and noted down events taken place in course of trial. The learned trial Court elaborately discussed the conduct of the complainant. It is trite law that cross-examination of the witnesses is salutary right of an accused and the decision referred to by Mr. Mahato, the learned Advocate for the petitioner, in Ajoy kumar Ghose (supra), in fact, supports that legal proposition. The learned trial Court noted down the legal position and, accordingly, found no evidence, whatsoever, against the opposite parties for which any order of conviction can be noted. So, the opposite parties were acquitted from the charges.;