- (1.) This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 seeking to set aside the impugned order No.139 dated 17.12.2014 passed by the Learned Additional Sessions Judge, Fast Track 4th Court, Barrackpore, North 24(Parganas) rejecting the petition dated 26.11.2014 filed by the present petitioner praying for recalling P.W.1, P.W.2, P.W.3, P.W.8 and P.W.21 for further cross-examination on recall.
(2.) Mr. Shiladitya Sanyal, Learned Advocate appearing for the petitioner submitted that the petition for recalling of P.W.1, P.W.2, P.W.3, P.W.8 and P.W.21 for further cross-examination was filed since due to inadvertence certain vital suggestions and denials were not put to those witnesses and those are very much essential for just decision of this case. He further submitted that instead of exercising the discretionary power under Section 311 of the Cr.P.C. in order to ensure that justice is done, the Learned Trial Court rejected the petition which has caused not only prejudice to the accused but also has occasioned miscarriage of justice. He submitted yet further that grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial. But the Learned Trial Court has wrongly denied such opportunity to the petitioner/accused. Therefore, the impugned order should be set aside and the petitioner/accused be allowed opportunity to further cross-examine those witnesses after recalling them. He relied on the decision of the Hon'ble Supreme Court (P. Sanjeeva Rao V. State of Andhra Pradesh, 2012 3 SCC(Cri) 1) in support of his submission.
(3.) Mr. Ayan Bhattacharjee, Learned Advocate appearing for the State vehemently opposed such submission made by his Learned Adversary and submitted that the Court is not bound to exercise its discretionary power under Section 311 Cr.P.C. at the sweet will or desire of any party to the proceeding. The determinative factor is whether it is essential to the just decision of the case. He submitted further referring to the impugned order itself which elaborately depicts the entire facts and circumstances and the conduct of the accused. He submitted yet further that those witnesses were examined long long ago. Not only that, 21 witnesses were cross-examined by the previous Advocate and the New Advocate was engaged who has been conducting the case since 09.12.2013 but the petition for recall was filed on 26.11.2014. This very conduct on the part of the accused shows some malafide. He further drew my attention to the order dated 14.10.2014 passed by the Hon'ble Supreme Court in Criminal Appeal No.1202/2013 (Md.Pappu Sardar @ Pappu Sardar & Anr. V. State of West Bengal & Anr.) and submitted that this accused got bail from the Hon'ble Supreme Court by suppressing some material facts and so by that order the Hon'ble Supreme Court was pleased to cancel his bail and directed that the trial be concluded within a period of three months and that the trial be conducted on day to day basis. He submitted further that only two witnesses were left and on receipt of the aforesaid order of the Hon'ble Supreme Court, the Learned Magistrate was cross-examined on 26.11.2014 and thereafter, the instant petition was filed by the accused. Therefore, the Learned Trial Court has rightly rejected the petition and the impugned order should not be disturbed.;