- (1.) This is an application under Section 482 of the Code of Criminal Procedure, 1973, (hereinafter called as the said code) wherein the order No.58 dated 09.12.2015 in Sessions Case No.690 of 2009 passed by the learned Additional Sessions Judge, 1st Track Court, Kandi, Murshidabad, has been assailed before this court wherein the learned court below was pleased to call the Headmistress of Kandi Raja Manindra Chandra Girls High School, Kandi, District Murshidabad, to submit the required information as mentioned in Memo No.379 dated 09.12.2015 and she was directed to appear before the court on 18.12.2015, as per the said order the court was anxious to know as to the age of the victim girl and as such Section 311 of the Code was used.
(2.) Now the question is whether that discretion was rightly exercised. At the time of hearing, Mr. Ghosh learned Counsel appearing on behalf of the petitioners submitted by taking me to the Single Bench decision of this court as Pratap Chandra Mondal & Ors. Vs. The State of West Bengal, 2004 CalCriLR 696 to convince this court that one reasoned order is to be passed justifying the necessity of examination of such witnesses under Section 311 of the Code and mechanical order without assigning any reason is liable to be set aside. This court is not unmindful of the decision of the Apex Court as State Vs. Shiv Kumar Yadav, 2015 AIR(SC) 3501 wherein the Apex Court culled out following principles to be borne in mind, while exercising the discretionary power under Section 311 of Cr.P.C, some up which are as follows:- 1. Whether the court is right in thinking that the new evidence is needed by it Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case 2. The exercise of the widest discretionary power under Section 311 Cr.P.C should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person. 4. The exercise of power under Section 311 Cr.P.C should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 6. The wide discretionary power should be exercised judiciously and not arbitrarily. 7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 8. The object of Section 311 Cr.P.C simultaneously imposes a duty on the court to determine the truth and to render a just decision. 9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
(3.) The case before the floor of the trial court was under Section 366A of the IPC wherein the age of the victim girl is a big factor. Thus, the eagerness of the trial court to get a clear picture as to the age of the victim girl as I get from the impugned order cannot be set aside to be one exercise in futile and unnecessary use of such discretionary power. This court is satisfied that the learned trial court duly exercised this discretion granted under Section 311 of the Cr.P.C which is very much matching with the parameters as laid down by the Apex Court in its decision in Shiv Kumar Yadav. On scrutiny of the order in challenge this court cannot say that the learned trial court did not appreciate the matter while exercising the discretion. This court is not going to apply the decision of this court as passed in Pratap Chandra Mondal . It is true that the name of the said headmistress did not figure in the charge-sheet and no document was seized from her but still then such documentary evidence is a must for proper adjudication of this case as rightly assessed by the trial court. I do not like to fetter the hands of the trial court by setting aside the impugned order. I am told that the case is ready for hearing of argument and that the evidence of the said headmistress had already been recorded. The learned trial court will be free to deliver the judgement even taking into consideration the evidence of that court witness. This criminal revisional application having no merit is dismissed on contest without any cost. Office is directed to communicate this order to the learned trial court along with the lower court records. Certified copy of this order, if applied for, be given to the parties as per rules.;