Kolkata: The Calcutta High Court has observed that the date of examination of accused cannot precede examination of prosecution witnesses under Section 311 of CrPC.
The bench of Justice Jay Sengupta was moved challenging the trial court order. In the matter, the IO of the case passed away during trial in the course of examination. The BDO was then directed to produce the documents in question and adduce further evidence under Section 311 of CrPC. However, he never turned up.
In an order dated July 31, 2024, it was recorded that a copy of the order along with the order dated July 01, was to be sent to the Inspector in-charge (IC), Gazole Police Station, Malda for his information and necessary compliance. The IC was asked to inform the concerned BDO.
Defence counsel argued that in the same order the judge went on to fix a date for examination under Section 313 of CrPC.
This was patently bad in law. The state counsel opposed the prayer.
The court noted that the IC, Gazole PS was to inform the BDO when it was found the latter was not appearing in court.
The same was not done. The trial judge realised this and directed the IC to comply with the order dated July 31, 2024.
But, by the same order, the judge fixed a date for examination of the accused under Section 313 of CrPC.
The court observed the date for examination of the accused under Section 313 of CrPC could not have been fixed before the examination of the prosecution witnesses was complete.
The impugned order (July 31) and its consequent order (August 6) was set aside.
The trial judge was directed to conclude the examination of the prosecution witnesses after ensuring appearance of the BDO with relevant
documents and only thereafter, fix a date for examination of the accused.