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Judgment
R.R. Prasad
Heard Learned Counsel appearing for the petitioner and Learned Counsel appearing for the C.B.I. Learned Counsel appearing for the petitioner submits that the accused persons of R.C. no.33(A) of 1996 were being tried earlier by the court designated as 7th A.J.C, Dumka at Ranchi where 35 witnesses were examined on behalf of the prosecution. Consequent upon transfer of 7th A.J.C, the case was transferred to the court of 5th A.J.C where witnesses no.36 to 61 were examined on behalf of the prosecution. Thereafter a case bearing Cr.M.P No. 865 of 2010 was filed raising an issue that 5th J.A.C does not have territorial jurisdiction to try the case. That case was disposed of vide order dated 22.2.2011 which reads as follows.
Heard Mr.Chittaranjan Sinha, Learned Counsel for the petitioner and Md. Mokhtar Khan, Learned Counsel for the C.B.I.
The basis objection of the Learned Counsel for the petitioner is that the court at Ranchi has no territorial jurisdiction.
Learned Counsel was proposed that administratively the Chief Justice can confer jurisdiction of Ranchi court which was agreed upon. So, the file may be placed before the Chief Justice to confer orders for jurisdiction of Ranchi Court. All the proceedings before the court at Ranchi would not be vitiated on account of the jurisdictional issue involved in this case.
If the accused wants any special witness to be recalled, then reasons to be recoded in his petition and the court may permit. The court will also have the right to reject the application, if it considers that the witness is not necessarily to be examined.
With the aforesaid orders, this petition is disposed of.
That order was challenged before the Hon''ble Supreme Court in Special Leave to Appeal (Crl) No. 2409 of 2011 but the Hon''ble Supreme Court declined to interfere with the impugned order. However, it was observed that the petitioner is free to seek clarification if need arise in respect of order dated 22nd February, 2011 and the consequential order of the Hon''ble the Chief Justice passed on the administrative side. Thereupon, without seeking any clarification of the order dated 22.2.2011 passed by this Court, an application was filed before the court below praying therein to recall witness nos.37, 43, 49 and 62 for their cross examination. That application was dismissed, vide order dated 29.7.2011 holding therein that the petitioner had earlier been afforded with full opportunity to cross-examine witness nos. 37, 43 and 49 and as such, they need not to be recalled for cross-examination.
So far witness no.62 is concerned, it was recorded that he also needs not to be recalled as defence has refused to cross-examine him. That order is under challenge.
Mr. Sinha, learned Sr. counsel appearing for the petitioner submits that out of those four witnesses, witness nos. 37,43, 49 warants to be recalled for their cross-examination on the point of the prosecution of the petitioner being hit by the principle of double jeopardy as contemplated u/s 300 of the Code of Criminal Procedure as on the evidences of those three witnesses, the petitioner has been convicted in another case bearing R.C.No.22(A) of 1996 and so far witness no.62 is concerned, he was not cross-examined for the reason that the court where he was examined had no territorial jurisdiction to try the case.
However, Mr. Khan, Learned Counsel appearing for the C.B.I submits that sufficient reason has been given by the court below for rejecting the prayer to recall those four witnesses for their cross-examination and hence, that order never requires any interference by this Court.
Having heard Learned Counsel appearing for the parties and on perusal of the record, I do find that so far the matter relating to recall of three witnesses, i.e. witness nos.37, 43 and 49 are concerned, the ground on which witnesses are being sought tobe recalled for their cross-examination is not at all tenable as the matter relating to the provision as contained in Section 300 of the Code of Criminal Procedure is nothing to do with the accusation for which the petitioner is being tried. Accordingly, the court below has rightly rejected the prayer for recall of three witnesses.
So far the matter relating to recall of witness no.62 is concerned, there appears to be reasonable ground for recalling of that witness as the petitioner under the impression that the court does not have territorial jurisdiction may have declined to cross-examine the witness earlier. Accordingly, that part of the order whereby the court rejected the prayer for recall of the witness no.62 is hereby set aside. Consequently, the court below is directed to recall the witness no.62 for his cross-examination by the petitioner.
With the aforesaid observation, this application is disposed of.Let a copy of this order be communicated to the court concerned through FAX at the cost of the petitioner.