The High Court of Calcutta, while allowing a petition filed under Sections 397/401 read with Section 482 of the CrPC, praying for setting aside the order passed by the learned Judge vide which he rejected the petition filed by the petitioner under Section 311 of the Code, held that Section 311 itself allows the petitioner to file the application at any stage of the proceeding/trial for a just decision to be arrived at.
Brief Facts:
Cross-examination of prosecution witnesses no. 1 and 2 was done by an earlier learned counsel and upon the appointment of the present learned counsel by the petitioner through Legal Services Authority on 15th November 2021, it was discovered that a few questions and suggestions were required to be put to PW-1 and PW-2 for fair trial. Hence, an application under Section 311 was filed. The application was rejected. Hence, the present petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the suggested questions as stated in the application under Section 311 of the Code need to be placed for proving the innocence of the accused petitioner. The questions could not be put to the witnesses due to laches of the earlier learned counsel and the petitioner cannot be made to suffer due to such laches.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that evidence of the case was concluded on 24th August 2022 and the accused-petitioner was examined under Section 313 of the Code on 31st March 2023. The application under Section 311 of the Code was filed on 27th July, 2023 i.e., much after examination of the accused under Section 313. The petition has been filed in order to fill up the lacunae in the cross-examination conducted earlier and to protract the proceedings.
Observations of the court:
The court noted that Power under Section 311 must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defense, or to the disadvantage of the accused, or to cause serious prejudice to the defense of the accused, or to give an unfair advantage to the opposite party.
The Court observed that there has been some delay in filing the application under Section 311 of the Code. But at the same time, it appears from the suggested questions contained in the application that they are relevant for the purpose of proper adjudication of the case. The provision itself allows the petitioner to file such an application at any stage of the proceeding/trial for a just decision to be arrived at. Also, the petitioner should not be made to suffer for any laches on the part of his learned counsel.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the accused petitioner is permitted to cross-examine the PW-1 and PW-2 in terms of the suggested questions made in the petition.
Case Title: Sri Budh Ram Gurung v UOI & Anr.
Coram: Hon’ble Justice Suvra Ghosh
Case No.: CRR 224 of 2023
Advocate for the Petitioner: Mr. Pritam Roy
Advocate for the Respondent: Mr. Aditi Shankar Chakraborty and Mr. Ratan Banik
Read Judgment @LatestLaws.com
Picture Source :
