Anup Kumar Sarkar v. The State
IN THE HIGH COURT AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR] ...
CRR/45/2024 Shri Anup Kumar Sarkar Vs.
The State Mr. Rakesh Pal Gobind ... for the Petitioner Mr. Sumit Karmakar ... for the State November 14, 2024 (Bithika) Item No.13 1.
The legality, propriety and correctness of the order No. 45 dated 31.07.2024 as passed by Learned Sessions Judge, Andaman & Nicobar Islands in Sessions Case No. 14 of 2019 is the subject matter of the instant revisional application.
2.
By the impugned order, Learned Trial Court allowed an application under Section 311 of the Code of Criminal Procedure as filed on behalf of the Prosecution for recalling of PW-4. The accused felt aggrieved and thus preferred the instant revisional application under Section 442 of BNSS, 2023.
3.
Before adverting to the issue as involved in the instant criminal revision this Court feels it necessary to record that in Sessions Case No. 14 of 2019 the accused petitioner is facing charge under Section 302/498A IPC and the trial before the Learned Sessions Judge,
Andaman & Nicobar Islands at Port Blair is going on. Admittedly, the said petition under Section 311 Cr.PC was filed on behalf of the prosecution at a very belated stage i.e at the fag end of the trial specially when the argument of the parties are about to be concluded as reveals from the order dated 11.06.2024.
4.
In respect of the instant revisional application Learned Advocate for the revisionist at the very outset draws attention of this Court to the order impugned. It is submitted that though a Court dealing with a criminal case is empowered under Section 311 Cr.P.C to examine any witness at any stage of trial but in the instant case, by allowing the said petition under Section 311 Cr.P.C a serious prejudiced has been caused to the accused since by way of recalling of PW-4 under Section 311 Cr.P.C the prosecution made an endevour to demolish the defence of the accused. Learned Advocate for the petitioner has handed over a photocopy of the certified copy of the deposition of PW-4. He also draws attention of this Court to the copy of the petition as filed under Section 311 Cr.P.C on behalf of the prosecution before the Learned Trial Court.
5.
It is submitted that from the cross-examination of PW-4 it would reveal that for non discloser of the name of the person dealing with CCTV a valuable right has been accrued in favour of the accused which is evident from the cross-examination of the PW-4 and thus in
doing the same the prosecution is making an attempt to fill up their lacuna by recalling PW-4 which is not permissible in the eye of law.
6.
It is further submitted that the person who is allegedly dealing with the computer and/or CCTV of the hotel in question is not examined under Section 161 of Cr.P.C at the stage of investigation and he has not been cited even as charge sheeted witness. It is thus submitted that no fruitful purpose would be served by recalling PW-4 as well as the person who allegedly deal with the computer and the CCTV since the accused would loose his valuable right to confront the said witness with regard to his previous statement since he was not examined by the Investigation Officer in course of his investigation. It is thus submitted that it is a fit case for allowing the instant application by setting aside the impugned order.
7.
In course of hearing Learned Advocate for the petitioner places his reliance upon the following reported decisions :-
1. 1980 Supreme (SC) Page No. 35- The State of Rajasthan Vs. Daulat Ram;
2. 1989 Supreme (SC) Page No.
394Mir Mohammed Omar and Ors. Vs. State of West Bengal;
3. 2011 Supreme (SC) Page No. 726- Vijay Kumar Vs. State of Uttar Pradesh and Another;
4. 2013 Supreme (SC) Page No. 589- Rajaram Prasad Yadav Vs. State of Bihar and Another;
5. 2017 Supreme (SC) Page No. 936- Ratan Lall Vs. Prahlad Jat and Others;
6. 2019 Supreme (SC) Page No. 319- Swapan Kumar Chatterjee Vs. Central Bureau of Investigation.
8.
Per Contra, Learned Public Prosecutor appearing for the Respondent / State at the very outset draws attentions of this Court to Section 311 Cr.P.C. Drawing further attention of this Court to the order dated 11.06.2024 it is submitted that Section 311 Cr.P.C mandates that a witness can be recalled at any stage of trial and thus their cannot be embargo on the part of Learned Trial Court to recall P.W- 4 even at the stage of argument in order to arrive at a just decision of this case. It is further submitted that in a criminal trial the ultimate goal is to find the truth and correctness of the charges and in order to achieve the same the legislatures in their own wisdom has incorporated Section 311 in the Cr.P.C 9.
In his next fold of submission Learned Public Prosecutor draws attention of this Court to Section 65 B of the Evidence Act. It is submitted that under Section 65 B of the Evidence Act the print out of an electronic record is admissible in evidence provided that such printout is taken from the computer during the period
over which the computer was used regularly to store and process the information by a person having lawful control over the use of the said computer. It is submitted that in order to arrive at a just decision the person who was dealing with the said computer and CCTV is also required to be examined and thus Learned Trial Court is very much justified in allowing the petition under Section 311 Cr.P.C. Learned Public Prosecutor thus submits that it is a fit case for dismissing the instant revisional application.
10.
On careful consideration of the entire materials as placed before this Court and after giving due considerations over the submissions of the Learned Advocates appearing for the contending parties it appears to this Court that admittedly the petition under Section 311 Cr.P.C was filed at a very belated stage. From the contents of the said application under Section 311 Cr.P.C it reveals that by making such application the Prosecution has expressed his intention to put the following question :- "What is the name and address of the person who was working with computer and who took out those footages as stated by you in your deposition before this Hon'ble Court ?"
11.
From the materials as placed before this Court it reveals that the concerned CCTV footage has been
submitted before the Learned Trial Court along with a certificate under Section 65 B of Evidence Act. 12.
For some reason or other the person dealing with the said computer and the CCTV footage in question was not examined. At this juncture, the question arises as to whether the Learned Trial Court is at all justified in allowing the petition under Section 311 Cr.P.C that too at a belated stage especially when P.W- 4 was crossexamined in full and/or when it has been contented on the part of the defense that a valuable right has been accrued in favour of the accused on account and/or in course of cross - examination of P.W 4 which ought not to be demolished.
13.
The Court considers that for effective adjudication the instant lis the provision of Section 311 Cr.P.C is required to be looked into and the same is reproduced herein below in verbatim :- Section 311 Code of Criminal Procedure- Power to summon material witnesses, or examine person present- " Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall
and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
14. This Court also proposes to look to the law of the land dealing with the power to summon material witnesses etc. as provided in Section 311 Cr.P.C. In the reported decision of Ram Chander Vs. The State of Haryana reported in AIR 1981 SC 1036, The Hon'ble Apex Court while dealing with the scope of Section 311 Cr.P.C hold the following:- " If a criminal Court is to be a effective instrument in disposing just the Presiding Judge must cease to be a spectator and a mere recording machine.
He must become a participant in the trial by evidencing intelligent active interest by putting questions to witnesses in order to ascertain the truth."
The same was taken by the Hon'ble Supreme Court in the following reported decision:
i). State of Rajasthan Vs. Anil alias Hanit & others reported in AIR 1997 SC 1023.
15.
Keeping in mind the aforementioned legislative provisions and the proposition of law as enshrined in the aforementioned decision of the Hon'ble Apex Court if
I look to the factual aspects of this case it appears that before the Learned Trial Court it is the case of the prosecution that the CCTV footage is an important and valuable piece of evidence in order to bring home charges against the accused. Admittedly, the CCTV footage has been exhibited in the meantime. By filling a petition under Section 311 Cr.P.C the Prosecution has made an attempt to make a due compliance of Section 65 B of Evidence Act.
16.
Such being the position this Court finds no illegality and/or irregularity on the part of the Learned Trial Court in allowing such prayer since the ultimate goal of Learned Trial Court is to arrive at a logical conclusion of the trial by taking active participation in the said trial.
17.
This court is not unmindful of the fact that for the sake of argument in the event Learned Trial Court permits the person who was dealing with the computer and CCTV of the hotel in question to adduce evidence, the accused would get adequate opportunity to crossexamine him and in course of argument the defense has every opportunity to highlight the contradiction and/or omission within the meaning of proviso of Section 162 Cr.P.C read with Section 145 of Evidence Act. 18.
In considered view of this Court the reported decision as cited from the side of the revisionist are
distinguishable from the facts and circumstances of this case.
19.
This Court thus finds no merit in the instant revision. Accordingly the CRR No. 45/2024 is hereby dismissed. The interim order if there be any stands thereby vacated.
20.
Consequently the impugned order dated 31.07.2024 as passed by Learned Sessions Judge, Andaman & Nicobar Islands in Sessions Case No. 14 of 2019 is hereby affirmed.
21.
Since the present revisionist is still in custody for a considerable length of time, this Court requests the Learned Trial Court to conclude the trial of Sessions Case No.14 of 2019 preferably within 3 months from the date of communication of this order.
22.
Registrar is directed to communicate this order to the Learned Trial Court forthwith.
23.
Urgent photostat certified copy of this order be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities. (Partha Sarathi Sen, J.)