Aizul Laskar @ Azizul Laskar & Ors vs The State Of West Bengal
2022 Latest Caselaw 1729 Cal

Form No. J(2)

                IN THE HIGH COURT AT CALCUTTA
                      Criminal Revisional Jurisdiction
                              Appellate Side
Present:
The Hon'ble Justice Jay Sengupta

                              CRR 730 of 2022
                  Aizul Laskar @ Azizul Laskar & Ors.
                                    Vs.
                         The State of West Bengal


For the Petitioners             : Mr. Sabir Ahmed
                                  Mr. Mujibar Ali Naskar
                                  Mr. T. Ahmed

For the State                   : Mr. Madhusudan Sur, Ld. A.P.P.
                                  Mr. Dipankar Paramanick

Heard on                        : 01.04.2022

Judgment on                     : 01.04.2022


Jay Sengupta, J.:
      This is an application challenging an order dated 02.02.2022

passed by the learned Additional Sessions Judge, 1st Court, Seladah,

North 24-Parganas, thereby rejecting the petition filed by the accused

petitioner under Section 311 of the Code for recalling of PW39 in

connection with Sessions Trial No. 01(08) of 2012.

      Learned counsel appearing on behalf of the petitioners submits

as follows. The petitioners are the accused in this case. During trial,

the petitioners had prayed for correction of evidence of PW39. It was
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further submitted before the learned trial court that unless that

happened, the prosecution could not further cross-examine PW39. In

the meantime, certain other issues also cropped up. The petitioners

first preferred a revisional application before this Court being CRR No.

255 of 2021 with the prayer that the two applications filed by the

petitioners, one for correction of the evidence of PW 39 and the other

for recalling of PW 38 should be disposed of.       By an order dated

23.08.2021

passed in the said revision, the application was allowed

and the learned trial court was directed to dispose of the two

applications. When the matter went before the learned trial court, the

learned trial court rejected the prayer for recalling and was of the view

that the issue of correction could be taken up at the stage of

arguments. Thereafter, a second revisional application filed by the

petitioners being CRR No. 2440 of 2021 seeking recalling of PW 38 for

cross-examination. By an order dated 22.12.2021, the said prayer

was allowed. Although, the PW 39 was cross-examined on a few

occasions, the same could not be concluded and it was categorically

submitted on behalf of the defence that unless the correction was

effected, the cross-examination of the defence would not be in a

position to cross-examine PW 39. Yet, the evidence was closed at that

stage by the learned trial court. A date has been fixed for argument

on 2nd April, 2022. In the interest of justice, the petitioner should be

allowed at least a single days' opportunity to cross-examine the

witness namely, P.W.39. The petitioners undertake to cross-examine

the PW 39 regardless of whether the evidence of PW 39 recorded thus

far is corrected or not.

Learned counsel appearing on behalf of the State submits as

follows. First, the defence had ample opportunity to cross-examine

the witness namely, PW 39. In fact, cross-examination was done on

the number of occasions. Secondly, in the subsequent revisional

applications the petitioners had adequate opportunity to take up the

point regarding recalling of PW 39. But, the same was not done. It

was only after an order was passed for recalling PW 38 that the

petitioners prayed for recalling of PW 39.

I have heard the submissions of the learned counsels appearing

on behalf of the petitioners and the State and have perused the

revision petition.

It is true that the petitioners had moved two revisional

applications before this Court and at least in the second revisional

application, the issue of recalling of PW 39 could have been taken up

by the petitioners. At the same time it is also a fact that the defence

had clearly stated that it could cross-examine PW 39 only after the

evidence of PW 39 was corrected. That issue remained pending.

Whether the petitioners have waited all this long to bide some

more time by not taking up the issue of recalling of PW 39 in the

second revision or not, they nevertheless have a very important right

to cross-examine the witness, namely, PW 39. It is an integral part of

their right to a fair trial.

In view of the above and in the interest of justice, I set aside the

closure of evidence of PW 39 and direct the learned trial court to grant

a single day's opportunity to the petitioners to cross-examine PW 39

by fixing a date for such purpose in the month of April, 2022. The

cross-examination would be done regardless of the purported

correction of evidence of PW 39 as had earlier been prayed for on

behalf of the defence.

After the cross-examination of PW 39 is concluded, the learned

trial court shall proceed with the trial from the present stage and

conclude the proceeding as expeditiously as possible.

With these observations, the revisional application is disposed

of.

Urgent photostat certified copies of this judgment may be

delivered to the learned Advocates for the parties, if applied for, upon

compliance of all formalities.

All parties shall act on a server copy of this order, duly

downloaded from the official website of this Court.

(Jay Sengupta,J.) tbsr