Tripura High Court
Sri Arjun Debbarma vs The State Of Tripura on 28 May, 2024
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No.21 of 2024
Sri Arjun Debbarma,
S/O Sri Subal Debbarma,
Resident of Samukchhara, P.S. Kakraban,
P.O. Udaipur, District-Gomati Tripura
----Petitioner(s)
Versus
The State of Tripura
----Respondent(s)
For Petitioner(s) : Ms. R. Majumder, Adv,
Mr. B. Banerjee, Adv.
For Respondent(s) : Mr. Raju Datta, P.P.
Date of hearing : 22.05.2024
Date of delivery of
Judgment & Order : 28.05.2024
Whether fit for
reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
Heard Learned Counsel Mr. B. Banerjee representing
the petitioner and also heard Learned P.P. Mr. Raju Datta
representing the State. This revision is filed challenging the
order dated 07.03.2024 passed by Learned Additional Sessions
Judge, Gomati District Udaipur in connection with case no.S.T.
No.26 of 2021.
2. For the sake of convenience, I would like to refer
hereinbelow the relevant portion of the order dated 07.03.2024
passed by Learned Additional Sessions Judge, Gomati District
Udaipur which is as follows:
Page 2 of 15
"Accused persons namely Arjun Debbarma,
Chandulal Debbarma and Kanan Debbarma are
present with their learned Counsels Mr. A. Das & Mr.
A. Iqbal.
Learned Special PP Mr. Paltu Das is present for the
prosecution.
Four DW‟s are present today.
All of them examined, cross-examined and
discharged.
Learned Counsel Mr. A. Das appearing for defence
side has filed a petition with prayer for issuing
summons upon Sri Swapan Majumder, NOTARY,
Govt. of India, Gomati District, Udaipur and Sri Rajib
Ghosh Advocate of Gomati Bar Association.
Ld. Special PP raised objection with the prayer of
defence side that the affidavit of Birmanik
Murashing which was notarised before the Notary
Swapan Majumder has no relevancy with this case.
Heard both side and considered.
The list of DW‟s filed by the defence side on
24.01.2024 showed that there the names of Swapan
Majumder and Sri Rajib Ghosh were not listed and
today all of a sudden the defence side has filed
prayer for issuing summons upon Sri Swapan
Majumder, NOTARY, Govt. of India, Gomati District,
Udaipur and Sri Rajib Ghosh Advocate of Gomati Bar
Association as DW‟s on their behalf.
Thus this Court finds no reason to allow the prayer
of defence side for issuing summons upon Sri
Swapan Majumder and Sri Rajib Ghosh, which is
rejected accordingly.
Thus DW‟s are hereby closed.
The accused persons are asked to file bond of
Rs.45,000/- each with one surety of like amount as
per Sec.437A of CrPC on or before the next date.
To 02-04-2024 for filing of bond u/Sec.437A of
CrPC/argument."
3. In course of hearing, Learned Counsel Mr. B. Banerjee
submitted before this Court that the present petitioner on
07.03.2024 submitted one petition before the Learned Court
below praying for issuing summons upon two witnesses namely
Sri Swapan Majumder, Notary, Govt. of India, Gomati District,
Udaipur Reg. No.-13507 and Sri Rajib Ghosh, Advocate, Gomati
District Bar Association, Udaipur for their examination in
support of his defence for proper adjudication of the case but
the Learned Court below by order dated 07.03.2024 has
Page 3 of 15
dismissed the said petition of the accused petitioner. Learned
Counsel further submitted that in support of defence, the
accused adduced four witnesses who were already been
examined and if the aforesaid two witnesses are not examined
then the accused person would be highly prejudiced but the
Learned Court below did not consider the application and
rejected the same and fixed the case for hearing of argument.
4. On the other hand, Learned P.P. Mr. Raju Datta
appearing on behalf of the State-respondent submitted before
the Court at the time of argument that the present petition is
not maintainable as the petitioner has challenged an
interlocutory order against which no revision lies in view of
Section 397 of Cr.P.C and urged for dismissal of this revision
petition. He further submitted that from the contents of the
order, it is clear that on 24.01.2024 at the time of filing list of
witnesses, the names of those witnesses were not furnished by
the defence to the prosecution even their names were not
submitted before the Court so at this belated stage there was
no scope on the part of Learned Court below to entertain the
petition and by filing this revision petition the petitioner is
trying to drag the proceeding for which Learned P.P. urged for
dismissal of this petition with huge costs.
Both the Learned Counsel in course of hearing referred
few citations which would be discussed in detail in due course of
time.
5. Now, before conclusion of this revision petition, let us
examine the legal position. Section 243 provides for evidence
Page 4 of 15
for defence. For the sake of convenience I would like to refer
hereinbelow the relevant provision of Section 243 of Cr.P.C.
which provides as under:
"243. Evidence for defence.- (1) The accused shall
then be called upon to enter upon his defence and
produce his evidence; and if the accused puts in any
written statement, the Magistrate shall file it with
the record.
(2) If the accused, after he has entered upon his
defence, applies to the Magistrate to issue any
process for compelling the attendance of any
witness for the purpose of examination or cross-
examination, or the production of any document or
other thing, the Magistrate shall issue such process
unless he considers that such application should be
refused on the ground that it is made for the
purpose of vexation or delay or for defeating the
ends of justice and such ground shall be recorded by
him in writing:
Provided that, when the accused has cross-
examined or had the opportunity of cross-examining
any witness before entering on his defence, the
attendance of such witness shall not be compelled
under this section, unless the Magistrate is satisfied
that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any
witness on an application under sub-section(2),
require that the reasonable expenses incurred by
the witness in attending for the purposes of the trial
be deposited in Court."
From the aforesaid provision, it appears that for issuing
summons upon any witness, the accused has to apply to the
Magistrate or to the Court to issue any process for compelling
the attendance of any witness for the purpose of examination or
cross-examination and the Magistrate shall issue such process
unless he considers that such application should be refused on
the ground that it is made for the purpose of vexation or delay
or for defeating the ends of justice and such ground shall be
recorded by him in writing.
6. Here, in this case, as already stated, the accused
petitioner on 07.03.2024 filed the petition before the Learned
Court below stating inter alia that the victim of this case has
Page 5 of 15
falsely implicated him in this case and the petitioner filed the
certified to be true copy of the affidavit before the Court dated
27.01.2022 issued by one Sri Swapan Majumder, Notary and
said certified to be true copy he already submitted before the
Learned Court and it was required to substantiate the false
allegation made by the victim against him. But the Learned
Court below at the time of disposal of this petition only
mentioned the ground that at the time of filing list of witnesses
on 24.01.2024 the names of the persons Sri Swapan Majumder
and Sri Rajib Ghosh were not listed and all on a sudden the
defence prayed for issuing summons upon those witnesses.
Hence, on that ground, the Learned Court below rejected the
petition but at the time of dismissal of the petition, no suitable
reasons were mentioned by the Learned Trial Court below.
Because until and unless it is proved that the petition was
submitted just for the purpose of vexation or defeating the ends
of justice then in my considered view the Learned Court below
is bound to consider the application filed by the accused
persons in taking his defence under Section 243 of Cr.P.C.
7. Since, it is a sessions triable case so let us also
examine the relevant portion of Section 233 of Cr.P.C. which
provides as under:
"233. Entering upon defence.- (1) Where the
accused is not acquitted under Section 232, he shall
be called upon to enter on his defence and adduce
any evidence he may have in support thereof.
(2) If the accused puts in any written statement,
the Judge shall file it with the record.
(3) If the accused applies for the issue of any
process for compelling the attendance of any
Page 6 of 15
witness or the production of any document or thing,
the Judge shall issue such process unless he
considers, for reasons to be recorded, that such
application should be refused on the ground that it
is made for the purpose of vexation or delay or for
defeating the ends of justice."
From the aforesaid provision, it also appears that Court
may refuse to accept the petition if it is made for the purpose of
vexation or delay or for defeating the ends of justice. Athough
the Learned Counsel for the petitioner has referred the
provision of Section 243(2) of Cr.P.C. at the time of hearing of
argument.
8. Now, let us examine what is interlocutory order. In this
regard, at the time of hearing of argument, Learned Counsel for
the petitioner, Mr. B. Banerjee referred one citation of the
Hon'ble Supreme Court of India which was reported in (2007)
2 SCC 258. In Kalyani Baskar v. M.S. Sampoornam dated
11.12.2006 wherein para nos. 4, 5 and 12 provides as under:
"4. The Judicial Magistrate dismissed the said
application on the ground that the genuineness of
the signature could be questioned only at the time
of the trial of the compliant. Thereafter, the trial
was commenced and the evidence of the respondent
was recorded. The banker of the appellant during
the cross-examination deposed that he has not
verified the signature before returning the cheque
in question, as dishonoured. In these
circumstances, during the trial of the case the
appellant preferred an application under Section
243 CrPC, requesting the Magistrate to send the
cheque in question for expert opinion to ascertain
the correctness and genuineness of the appellant‟s
signature appearing thereon. The Magistrate,
however, dismissed the application on the ground
that it was not mandatory that every disputed
document or signature has to be sent to an expert
for opinion, that the original document filed in the
court cannot be sent out for any reason and that
every document filed before the court should be
safe till the disposal of the litigation.
5. Feeling aggrieved by this order, the appellant
preferred Criminal Revision Case No.335 of 2002
under Section 397 read with Section 401 CrPC in the
High Court of Judicature at Madras. The revision
petition came to be dismissed by the impugned
order. Hence, this appeal by the appellant.
Page 7 of 15
12. Section 243(2) is clear that a Magistrate holding
an inquiry under CrPC in respect of an offence
triable by him does not exceed his powers under
Section 243(2) if, in the interest of justice, he
directs to send the document for enabling the same
to be compared by a handwriting expert because
even in adopting this course, the purpose is to
enable the Magistrate to compare the disputed
signature or writing with the admitted writing or
signature of the accused and to reach his own
conclusion with the assistance of the expert. The
appellant is entitled to rebut the case of the
respondent and if the document viz. the cheque on
which the respondent has relied upon for initiating
criminal proceedings against the appellant would
furnish good material for rebutting that case, the
Magistrate having declined to send the document
for the examination and opinion of the handwriting
expert has deprived the appellant of an opportunity
of rebutting it. The appellant cannot be convicted
without an opportunity being given to her to present
her evidence and if it is denied to her, there is no
fair trial. "Fair trial" includes fair and proper
opportunities allowed by law to prove her
innocence. Adducing evidence in support of the
defence is a valuable right. Denial of that right
means denial of fair trial. It is essential that rules of
procedure designed to ensure justice should be
scrupulously followed, and the courts should be
jealous in seeing that there is no breach of them.
We have not been able to appreciate the view of the
learned Judge of the High Court that the petitioner
has filed application under Section 243 CrPC without
naming any person as witness or anything to be
summoned, which are to be sent for handwriting
expert for examination. As noticed above, Section
243(2) CrPC refers to a stage when the prosecution
closes its evidence after examining the witnesses
and the accused has entered upon his defence. The
appellant in this case requests for sending the
cheque in question, for the opinion of the
handwriting expert after the respondent has closed
her evidence, the Magistrate should have granted
such a request unless he thinks that the object of
the appellant is vexation or delaying the criminal
proceedings. In the circumstances, the order of the
High Court impugned in this appeal upholding the
order of the Magistrate is erroneous and not
sustainable."
Learned Counsel also referred another citation of
Hon'ble Supreme Court of India reported in (2008) 5 SCC 633.
In T. Nagappa v. Y.R. Muralidhar dated 24.04.2008 wherein
para nos. 8 and 11, Hon'ble the Apex Court observed as under:
"8. An accused has a right to fair trial. He has a right
to defend himself as a part of his human as also
fundamental right as enshrined under Article 21 of
the Constitution of India. The right to defend
oneself and for that purpose to adduce evidence is
Page 8 of 15
recognised by Parliament in terms of sub-section(2)
of Section 243 of the Code of Criminal Procedure,
which reads as under:
"243. Evidence for defence.- (1) * * *
*
(2) If the accused, after he has entered upon
his defence, applies to the Magistrate to issue
any process for compelling the attendance of
any witness for the purpose of examination or
cross-examination, or the production of any
document or other thing, the Magistrate shall
issue such process unless he considers that
such application should be refused on the
ground that it is made for the purpose of
vexation or delay or for defeating the ends of
justice and such ground shall be recorded by
him in writing:
Provided that, when the accused has cross-
examined or had the opportunity of cross-
examining any witness before entering on his
defence, the attendance of such witness shall
not be compelled under this section, unless
the Magistrate is satisfied that it is necessary
for the ends of justice."
11. The issue now almost stands concluded by a
decision of this Court in Kalyani Baskar v. M.S.
Sampoornam : (2007) 2 SCC 258 (in which one of
us, L.S. Panta, J., was a member) wherein it was
held: (SCC p.262, para 12)
"12. Section 243(2) is clear that a Magistrate
holding an inquiry under CrPC in respect of an
offence triable by him does not exceed his
powers under Section 243(2) if, in the
interest of justice, he directs to send the
document for enabling the same to be
compared by a handwriting expert because
even in adopting this course, the purpose is
to enable the Magistrate to compare the
disputed signature or writing with the
admitted writing or signature of the accused
and to reach his own conclusion with the
assistance of the expert. The appellant is
entitled to rebut the case of the respondent
and if the document viz. the cheque on which
the respondent has relied upon for initiating
criminal proceedings against the appellant
would furnish good material for rebutting that
case, the Magistrate having declined to send
the document for the examination and
opinion of the handwriting expert has
deprived the appellant of an opportunity of
rebutting it. The appellant cannot be
convicted without an opportunity being given
to her to present her evidence and if it is
denied to her, there is no fair trial. „Fair trial‟
includes fair and proper opportunities allowed
by law to prove her innocence. Adducing
evidence in support of the defence is a
valuable right. Denial of that right means
denial of fair trial. It is essential that rules of
procedure designed to ensure justice should
be scrupulously followed, and the courts
should be jealous in seeing that there is no
breach of them.""
Learned Counsel further referred another citation
reported in AIR 1977 SC 2185. In Amar Nath v. State of
Haryana dated 29.07.1977 wherein Hon'ble the Apex Court in
para 6 has discussed about interlocutory application herein:
"The main question which falls for determination in
this appeal is as to what is the connotation of the
term "interlocutory order" as appearing in sub-s(2)
of S.397 which bars any revision of such an order by
the High Court. The term "interlocutory order" is a
term of well-known legal significance and does not
present any serious difficulty. It has been used in
various statutes including the Code of Civil
Procedure, Letters Patent of the High Courts and
other like statutes. In Webster‟s New World
Dictionary "interlocutory" has been defined as an
order other than final decision. Decided cases have
laid down that interlocutory orders to be appealable
must be those which decide the rights and liabilities
of the parties concerning a particular aspect. It
seems to us that the term "interlocutory order" in
S.397(2) of the 1973 Code has been used in a
restricted sense and not in any broad or artistic
sense. It merely denotes orders of a purely interim
or temporary nature which do not decide or touch
the important rights or the liabilities of the parties.
Any order which substantially affects the rights of
the accused, or decides certain rights of the parties
cannot be said to be an interlocutory order so as to
bar a revision to the High Court against that order,
because that would be against the very object which
formed the basis for insertion of this particular
provision in S.397 of the 1973 code. Thus, for
instance, orders summoning witnesses adjourning
cases, passing orders for bail, calling for reports and
such other steps in aid of the pending proceeding
may no doubt amount to interlocutory orders
against which no revision would lie under Section
397(2) of the 1973 Code. But orders which are
matters of moment and which affect or adjudicate
the rights of the accused or a particular aspect of
the trial cannot be said to be interlocutory order so
to be outside the purview of the revisional
jurisdiction of the High Court."
Referring the aforesaid citations, learned Counsel for
the petitioner submitted that by the order dated 07.03.2024
Learned Court below has finally curtailed the right of the
petitioner to adduce any further evidence and if his application
is not allowed then he would be highly prejudiced to
substantiate his defence to the charges levelled against him by
the prosecution in the aforenoted case. And in view of the
principle of the Hon'ble Apex Court the aforesaid order was not
an interlocutory order as such the petitioner rightly filed the
revision petition before this Court to cancel the order and there
is no ambiguity on that.
9. Per contra, Mr. Raju Datta, Learned P.P. representing
the prosecution, in course of hearing of argument submitted
that the order challenged by the petitioner was an interlocutory
order and against an interlocutory order under Section 397(2)
of Cr.P.C there is no scope to prefer any revision for which this
present petition was not maintainable. He also referred the
following citations:
In Sethuraman v. Rajamanickam dated 18.03.2009
reported in (2009) 5 SCC 153, Hon'ble the Apex Court in para
3 & 5 observed as under:
"3. On 20-9-2004 the respondent herein filed
applications under Section 91 CrPC and Section 311
CrPC, seeking directions to produce the bank pass
books, income tax accounts and the LDS deposit
receipts of the appellant, as also for recalling him
for cross-examination. This was objected to by a
reply dated 24-9-2004. The court passed an order
on 1-10-2004, rejecting the applications made by
the respondent-accused. The respondent-accused
filed criminal revisions before the High Court under
Section 397 CrPC and the High Court, by the
impugned common order, proceeded to allow the
same. It is this order, which has fallen for
consideration before us in these appeals.
5. Secondly, what was not realized was that the
orders passed by the trial court refusing to call the
documents and rejecting the application under
Section 311 CrPC, were interlocutory orders and as
such, the revision against those orders was clearly
barred under Section 397(2) CrPC. The trial court, in
its common order, had clearly mentioned that the
cheque was admittedly signed by the respondent-
accused and the only defence that was raised, was
that his signed cheques were lost and that the
appellant complainant had falsely used one such
cheque. The trial court also recorded a finding that
the documents were not necessary. This order did
not, in any manner, decide anything finally.
Therefore, both the orders i.e. one on the
application under Section 91 CrPC for production of
documents and other on the application under
Section 311 CrPC for recalling the witness, were the
orders of interlocutory nature, in which case, under
Section 397(2), revision was clearly not
maintainable. Under such circumstances, the
learned Judge could not have interfered in his
revisional jurisdiction. The impugned judgment is
clearly incorrect in law and would have to be set
aside. It is accordingly set aside. The appeals are
allowed."
In Girish Kumar Suneja v. Central Bureau of
investigation dated 13.06.2017 reported in (2017) 14 SCC
809, wherein Hon'ble the Apex Court in para nos. 11, 15, 16,
17, 20, 23 and 24 observed as under:
11. The Constitution Bench of this Court considered
the scope of the revision jurisdiction of the High
Court under Section 439 of Criminal Procedure
Code, 1898 (the old Code) in Pranab Kumar Mitra v.
State of W.B. :1959 Supp(1) SCR 63. The
consideration was in the context of an application
for substitution filed by the son of a convict who had
challenged his conviction and sentence, but had
expired during the pendency of the revision petition.
The Constitution Bench held that the revision
jurisdiction of the High Court is a discretionary
jurisdiction to be exercised in aid of justice. What is
significant is that a litigant does not have a right to
have a revisable order set aside. Whether the High
Court chooses to exercise its revision jurisdiction in
a particular case or not depends upon the facts of
that case- hence, the reference to the revision
jurisdiction as a discretionary jurisdiction. The
revision jurisdiction of the High Court only
conserves the power of the High Court to ensure
that justice is done in accordance with the
recognized rules of criminal jurisprudence and that
criminal courts subordinate to the High Court do not
exceed their jurisdiction or abuse the powers vested
in them by the Criminal Procedure Code (the old
Code). In view of these conclusions of the
Constitution Bench, there is no doubt that the
appellants do not have any right to the revision of a
revisable order. It was held as follows: (AIR p.147,
para 6)
"6. In our opinion, in the absence of statutory
provisions, in terms applying to an application
in revision, as there are those in Section 431
in respect of criminal appeals, the High Court
has the power to pass such orders as to it
may seem fit and proper, in exercise of its
revisional jurisdiction vested in it by Section
439 of the Code. Indeed, it is a discretionary
power which has to be exercised in aid of
justice. Whether or not the High Court will
exercise its revisional jurisdiction in a given
case, must depend upon the facts and
circumstances of that case. The revisional
powers of the High Court vested in it by
Section 439 of the Code, read with Section
435, do not create any right in the litigant,
but only conserve with the power of the High
Court to see that justice is done in accordance
with the recognized rules of criminal
jurisprudence, or abuse their powers vested
in them by the Code."
15. While the text of sub-section (1) of Section 397
CrPC appears to confer very wide powers on the
court in the exercise of its revision jurisdiction, this
power is equally severely curtailed by sub-section
(2) thereof. There is a complete prohibition on a
court exercising its revision jurisdiction in respect of
interlocutory orders. Therefore, what is the nature
of orders in respect of which a court can exercise its
revision jurisdiction?
16. There are three categories of orders that a court
can pass - final, intermediated and interlocutory.
There is no doubt that in respect of a final order, a
court can exercise its revision jurisdiction - that is
in respect of a final order of acquittal or conviction.
There is equally no doubt that in respect of an
interlocutory order, the court cannot exercise its
revision jurisdiction. As far as an intermediate order
is concerned, the court can exercise its revision
jurisdiction since it is not an interlocutory order.
17. The concept of an intermediate order first found
mention in Amar Nath v. State of Haryana :(1977) 4
SCC 137 in which case the interpretation and impact
of Section 397(2) CrPC came up for consideration.
This decision is important for two reasons. Firstly, it
gives the historical reason for the enactment of
Section 397(2) CrPC and secondly, considering that
historical background, it gives a justification for a
restrictive meaning to Section 482 CrPC.
20. As noted in Amar Nath :(1977) 4 SCC 137 the
purpose of introducing Section 397(2) CrPC was to
curb delays in the decision of criminal cases and
thereby to benefit the accused by giving him or her
a fair and expeditious trial. Unfortunately, this
legislative intendment is sought to be turned topsy-
turvy by the appellants.
23. We may note that in different cases, different
expressions are used for the same category of
orders - sometimes it is called an intermediate
order, sometimes a quasi-final order and sometimes
it is called an order that is a matter of moment. Our
preference is for the expression "intermediate
order" since that brings out the nature of the order
more explicitly.
24. The second reason why Amar Nath :(1977) 4
SCC 137 is important is that it invokes the principle,
in the context of criminal law, that what cannot be
done directly cannot be done indirectly. Therefore,
when Section 397(2) CrPC prohibits interference in
respect of interlocutory orders, Section 482 CrPC
cannot be availed of to achieve the same objective.
In other words, since Section 397(2) CrPC prohibits
interference with interlocutory orders, it would not
be permissible to resort to Section 482 CrPC to set
aside an interlocutory order. This is what this Court
held: (SCC p.140, para 3)
"3. While we fully agree with the view taken
by the learned Judge that where a revision to
the High Court against the order of the
Subordinate Judge is expressly barred under
sub-section (2) of Section 397 of the 1973
Code the inherent powers contained in
Section 482 would not be available to defeat
the bar contained in Section 397(2). Section
482 of the 1973 Code contains the inherent
powers of the Court and does not confer any
new powers but preserves the powers which
the High Court already possessed. A
harmonious construction of Section 397 and
482 would lead to the irresistible conclusion
that where a particular order is expressly
barred under Section 397(2) and cannot be
the subject of revision by the High Court, then
to such a case the provisions of Section 482
would not apply. It is well settled that the
inherent powers of the Court can ordinarily be
exercised when there is no express provision
on the subject-matter. Where there is an
express provision, barring a particular
remedy, the Court cannot resort to the
exercise of inherent powers.""
Referring the same, learned P.P. representing the state-
respondent submitted that from the contents of the order dated
07.03.2024 passed by Learned Additional Sessions Judge,
Gomati District Udaipur, it is clearly established that this is an
interlocutory order and against an interlocutory order in view of
the principles of the Hon'ble Apex Court, there is no scope to
prefer any revision petition under Section 397 of Cr.P.C. so
Learned P.P. submitted that this present petition is not
maintainable and prayed for dismissal of this petition with
costs.
10. I have heard the rival submission of both the parties
and gone through the relevant provision of Section 397 of
Cr.P.C. and also the principles of law laid down by the Hon'ble
Apex Court in the aforenoted cases. Also perused the order
dated 07.03.2024 and after perusing the same, it appears to
me that by the said petition, the Learned Trial Court below
dismissed the prayer of the accused person to adduce defence
witness as the accused petitioner at time of filling of list of
witness on 24.01.2024 did not submit the names of those
persons to the Court. So, Learned Counsel closed the scope for
adducing further evidence and fixed the case for hearing of
argument. I have gone through the provision of Section 311 of
Cr.P.C. After elaborate hearing of argument of both the sides
and also keeping it in mind the principles of the aforesaid
citations laid down by the Hon'ble Apex Court, in my considered
view, the order dated 07.03.2024 is not an interlocutory order
rather it is a final order by which the further right of the
accused to adduce further evidence has been finally closed by
the Learned Trial Court below for which the revision petitioner is
entitled to prefer revision under Section 397 read with Section
401 of Cr.P.C. Although it was the duty of the accused
petitioner to submit the detailed list of witnesses at the time of
submission before the Learned Trial Court below however, for
proper adjudication of this case in my considered view, one
opportunity should be given to the petitioner to take steps for
issuing summons upon those witness as mentioned in his
petition.
11. In the result, the revision petition is allowed subject to
payment of cost of Rs.10,000/- by the accused petitioner to the
Learned Court below which be deposited to the treasury by
challan by the Learned Trial Court. In the event of deposit of
cost, the Learned Court below shall issue summons upon the
witnesses namely Sri Swapan Majumder and Sri Rajib Ghosh,
Learned Advocates for their examination on behalf of the
accused as a defence and this opportunity will be given only for
one time to the accused person to adduce those witnesses. If
the accused petitioner fails to adduce those witnesses before
the Court then he shall have no liberty to apply for fresh
summons to the Learned Court below and the entire cost of the
witnesses would be borne by the accused-petitioner. Since the
case is at the stage of hearing of argument so all efforts should
be made by the Learned Trial Court below to dispose the case
within a period of 2(two) months from the date of the receipt of
the copy of this judgment/order.
Send down the LCR along with copy of this
judgment/order. Also a copy of this order be furnished free of
cost to the Learned Counsel for the petitioner immediately. The
accused person shall appear before the Learned Trial Court
below invariably on 07.06.2024 and shall take appropriate steps
as ordered by this Court. This revision petition thus stands
disposed of.
Pending application(s), if any, stands disposed of.
JUDGE
MOUMIT by MOUMITA
DATTA
A DATTA Date: 2024.05.29
11:29:20 -07'00'
Deepshikha
