Witness
may be re-examined at any stage of trial
High
Court Division
(Criminal Jurisdiction)
Criminal Appeal No. 2669 of 2002
Shahinur Alam @ Shahin
Vs
The State
Justice Gour Gopal Saha and
Justice Zubayer Rahman Chowdhury
Date of Judgement : 25.10.2003
Background
Gour Gopal Saha, J: This appeal arises out of an order
dated 10.07.02 passed by the Nari-O-Shishu Nirjatan Daman Tribunal,
Rangpur in Nari-O-Shishu Nirjatan Daman Case No 455 of 2001 allowing
an application by the prosecution for re-calling six witnesses already
examined and discharged by the Court. The prosecution case, in short,
is that 02.04.01 was fixed for the marriage ceremony of informant Mst.
Tahura Akhtar, a student of Sukurer Hat Dakhil Madrassah aged about
13 years. At about 8-00 p.m. informant went out to respond to the call
of nature. At that time the accused Shahinur Alam and others forcibly
abducted her for immoral purpose by wrapping a Gamcha over her mouth
and thereafter they committed rape on her. Subsequently the accused
persons left her in the field in a battered condition. The police after
usual investigation submitted charge sheet against appellant under section
9(1) 30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 to face trial
before the Court. The accused persons were put on trial before the Nari-O-Shishu
Nirjatan Daman Tribunal, Rangpur to answer charges under sections 9(1)
30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. The accused persons
pleaded not guilty to the charge and claimed to be tried. At the trial
the prosecution examined as many as six witnesses, including the informant.
These witnesses were cross-examined at length by the defence and they
were duly discharged. It appears from the record that these witnesses
did not support the prosecution as regards the involvement of the accused
appellant. Subsequently, the learned Public Prosecutor filed an application
before the learned Nari-O-Shishu Nirjatan Daman Tribunal, Rangpur praying
for re-calling all the six witnesses who earlier examined and discharged
by the Tribunal. The only ground as mentioned in the application for
re-calling the witnesses in the application under section 540 of the
Code of Criminal Procedure is that these witnesses were misguided by
the defence, following which they deposed in the case without giving
the true version of the prosecution case. Witnesses, including the informant,
did not give to the court the whole truth but now they are willing to
give the truth to the Court. The Nari-O-Shishu Nirjatan Daman Tribunal,
Rangpur by his impugned order dated 10.7.02 allowed the prayer under
section 540 CrPC without assigning any reason whatsoever. Being aggrieved
by the aforesaid impugned order dated 10.07.02 passed by the Nari-O-Shishu
Nirjatan Daman Tribunal, Rangpur accused preferred the appeal before
this Court.
Deliberation
The learned Advocate appearing
for the appellant submits that although Court has wide power under section
540 of the code of Criminal Procedure to call for any evidence not earlier
recorded and any witness earlier examined by the Court, whenever it
is found necessary for coming to a proper decision in the case. This
section is never intended to give a premium for further cross-examination
of the witnesses examined and discharged by the Court on flimsy grounds.
He further submits that in such view of the matter, the learned Tribunal
was manifestly wrong in allowing the application for re-calling witnesses
already examined, on a casual view of the matter and as such the impugned
order is liable to be set aside.
The learned Assistant Attorney General appearing for the State, opposes
the appeal and submits inter alia that in the facts of the case the
learned Tribunal was fully justified in passing the impugned order.
As such the impugned order deserves no interference by this Court. The
learned advocate has cited before us the case reported in 4 BLC (HC)272,
the case of Nazrul Islam @ Montu Vs. The State and the case reported
in PLD 1975 Lahore 1431.
The learned Advocate for the appellant has placed before us the application
filed by the prosecution praying for re-calling 6 witnesses already
examined the impugned order and other connected papers. It is found
from the application for recalling the six witnesses including the victim
informant, that they deposed in Court and were duly discharged. It has
been alleged that the informant and other witnesses acted under the
influence of the accused persons and they did not give to the truth
to the Court. But now the witness want to give the whole truth as the
compromise move failed. It is thus manifest that these witnesses are
not reliable witnesses and not truthfulness. In such view of the matter,
subsequent developments on which the application under section 540 of
the Code of Criminal procedure has been based do not prove the bonafide
of the prosecution.
Section 540 of the Code of Criminal procedure is intended to enable
the Court to get at the truth and to come to a proper conclusion in
the matter under enquiry or trial. It thus gives wide powers to the
Court to examine any witness as a Court witness at any stage of the
case. But this discretion has to be exercised with caution and circumspection,
consistent with the provisions of the Code and the principles of criminal
justice. It is only for the purpose of just decision of a case that
the Court can have resort to section 540. The court cannot use these
powers to advance the cause of the prosecution or that of the defence
and whenever it passes an order that puts one party in a position of
advantage vis-a-vis the other, it commits an error of law to be struck
down in revision by the superior Court. In no circumstances, the Court
should abandon its high place of an impartial arbiter and assume the
role of a prosecutor, however altruistic its motives may be.
Result
The learned special Judge was manifestly wrong in allowing the prosecution's
prayer for re-calling all the six witnesses duly examined and discharged
without assigning any reason in support of the order. Such a cryptic
and non-speaking order obviously lacks application of a judicial mind
and cannot, therefore, be allowed to stand. In the result, the appeal
is allowed and the impugned order dated 10.7.02 passed by the Nari-O-Shishu
Nirjatan Daman Tribunal, Rangpur in Nari-O-Shishu Nirjatan Daman Case
No. 455 of 2002 is set aside.
Advocate
Md. Abdus Samad Miah for the Appellant and Mrs Monowara Begum, Assistant
Attorney General for the State.
