Bandana Roy vs The State Of West Bengal
2021 Latest Caselaw 1481 Cal

     Form No. J(2)

       IN THE HIGH COURT AT CALCUTTA
           CRIMINAL REVISIONAL JURISDICTION

Present:
The Hon'ble Justice Jay Sengupta


                C.R.R. 1756 of 2020


                      Bandana Roy
                         -vs-
                 The State of West Bengal

For the Petitioners         : Mr. Ranadeb Sengupta
                             Mr. Sachit Talukdar
                                       .....Advocates


For the Opposite party      : Mr. Avik Ghatak
                             Mr. Sagnik Mukherjee
                                       .....Advocates


For the State               : Mr. P.K. Datta
                             Mr. Santanu Deb Roy
                                       .....Advocates


Heard on                    : 19.02.2021


Judgment on                 : 19.02.2021
                              2




Jay Sengupta, J.:


      This is an application challenging an order dated

10.11.2020

passed by the learned Judicial Magistrate, 2nd

Court, Asansol, Paschim Bardhaman in G.R. Case No.

396 of 1986 under Section 498A of the Indian Penal Code

and under Sections 3 and 4 of the Dowry Prohibition Act,

thereby fixing on 14.12.2020 as a date for argument as

the prosecution did not take any step.

Learned counsel appearing on behalf of the

petitioner submits as follows. By an order dated

19.03.2008 passed in CRR 394 of 2005, this Court

directed the learned trial Court to examine CSW 5, the

doctor who had treated the victim lady. Although this

order was communicated to the learned trial Court, as

would be reflected from the order dated 25.06.2008 and

subsequently, from the order dated 12.01.2018, the

learned trial Court did not take any step to examine the

said witness. It is also true that the records of the case

were lying before this Court and was sent back only in

2018. The accused was brought by issuing a warrant of

arrest. However, the earlier order passed by this Court

was not complied with.

Learned counsel appearing on behalf of the opposite

parties submits as follows. After the earlier revisional

application was filed in 2005, the same was notified to the

learned trial Court at a later stage. In the meantime, the

learned trial Court had proceeded to examine the accused

under Section 313 of the Code. If at all, a direction is

passed to have CSW 5 examined, then the learned trial

Court may be directed to continue the proceeding from

the stage of examination of the accused.

Learned counsel appearing on behalf of the State

submits that since there is an inordinate delay caused in

disposing of the application, a specific direction may be

passed to conclude the trial as expeditiously as possible.

I have heard the submissions of the learned

counsels appearing on behalf of the petitioner, the State

and the private opposite parties and have perused the

revision petition.

The relevant direction passed by this Court on

19.03.2008 in CRR 394 of 2005 may be set out as under:

" Having heard the Ld. Advocate for the petitioner, I

find that though summon was issued upon the witness,

his presence could not be secured by the trial Court but

the order impugned does not reveal that the Ld.

Magistrate was satisfied as to the service of process upon

the witness. If the process was not actually served upon

the witness and if the evidence of such a witness was

really necessary, then closure of the evidence cannot be

done. In that view of the matter, I am unable to support

the impugned order dated 03.01.2005. Accordingly, the

revisional application is allowed. The order dated

03.01.2005 passed by the Ld. Judicial Magistrate, 2nd

Court, Asansol is set aside. The Ld. Magistrate will

proceed with the trial of the case in accordance with law

in the light of the observation contained in the body of

this order."

However, it appears from the order sheet that

although the learned trial Court came to know about the

order of this Court in 2008 and again in 2018, yet it did

not take adequate steps to have the said witness being

CSW 5 examined. It also appears that in the meantime,

the accused was examined under Section 313 of the Code.

In view of the above and in the interest of justice,

the impugned order fixing the next date for argument is

set aside. The learned trial Court is directed to issue a

process upon the witness being CSW-5 and have him

examined as per the earlier direction passed by this

Court. Thereafter, the learned trial Court shall continue

the proceeding from the stage of examination of the

accused under Section 313 of the Code in as much as,

necessary questions may put to the accused concerning

the evidence to be adduced by the new witness and

thereafter, conclude the proceeding as expeditiously as

possible, preferably within a period of six months from the

next date of hearing.

With these observations, the revisional application

is disposed of.

Urgent photostat certified copies of this order may

be delivered to the learned Advocates for the parties, if

applied for, upon compliance of all formalities.

(Jay Sengupta, J.)

ssi