Written Objection against the Petition under Section 311 of Cr.P.C.

 

In the Court of the Learned 8^th Additional District Session Judge, at Alipore, South 24 Parganas.

                                                          S.T. no. 5 (3) of 2012

                                                          In the matter of :

                                                          State

-      Versus –

Santosh Prasad Tiwary and Others,

                             _____Accused

Written Objection against the Petition under Section 311 of Cr.P.C.

The humble petition on behalf of the accused above named most respectfully;

Sheweth as under :

1.   That the petition under objection has been placed by the prosecution which intends to depose two witnesses namely (1) Surojit Biswas Cl – 15940, and (2) A.S.I. Prosad Kumar Chakraborty, whose name has not been recorded in Charge Sheet. The witness no.1, has taken the finger print of the deceased and the witness no. 2, has developed the finger print.

 

2.   That the petition under objection is not maintainable in its present form as under Section 311 Cr.P.C. any Court may, at any stage of any inquiry, trial or other proceeding summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined. If it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacuna in the prosecution evidence.

 

3.   That the Petitioners are facing prosecution for the offence punishable under Section 302 / 34 / 394 IPC. After investigation, charge sheet was filed as against the petitioners. The prosecution is support of it case, examined its witnesses of 11 (eleven) numbers till date. The last witness was examined as Fingerprint expert from CID Directorate.

 

4.   That the alleged two witnesses namely (1) Surojit Biswas Cl – 15940, and (2) A.S.I. Prosad Kumar Chakraborty, proposed by the prosecution are not the necessary witness as their name has been given birth by the prosecution after the completion of the last witness as Fingerprint expert from CID Directorate, to fill in the lacunae in the prosecution evidence.

 

5.   That as it appears that only intention of the prosecution to adduce evidence through alleged two witnesses namely (1) Surojit Biswas Cl – 15940, and (2) A.S.I. Prosad Kumar Chakraborty, whose name has not been recorded in Charge Sheet, has not been sufficiently explained and thus the intention of the prosecution established as delay the trial by filing application under Section 311 Cr.P.C. It is unexplainable as to why the prosecution intends to adduce evidence of the alleged two witnesses namely (1) Surojit Biswas Cl – 15940, and (2) A.S.I. Prosad Kumar Chakraborty, whose name has not been recorded in Charge Sheet, as court witness.

 

6.   That it is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court. Calling witness whose names are not recorded in the charge sheet, in order to give additional facts while ascertain the prosecution after completion of the cross examination of the witness as finger print expert is certainly dubbed as
“filling in a lacuna in the prosecution case”, and thus not permissible, in the interest of administration of Justice.

 

7.   That the exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

 

8.   That the Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

 

9.   That the power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

 

10.                That the Petitioners are relied on the Judgment of the Hon’ble Supreme Court of India reported in Rajaram Prasad Yadav – Versus – State of Bihar AIR 2013 SC 3081 ( para 23), wherein the guideline has been prescribed by the Hon’ble Supreme Court of India in invoking the prescribed provision of Section 311 Cr.P.C.

 

Photostat copy of the said Judgment is enclosing herewith and marked as Annexure –“A”.

 

11.                That in the given facts and circumstances, the petitioners seeks dismissal of the petition under Section 311 Cr.P.C. filed by the prosecution which does not satisfy the guideline prescribed by the Hon’ble Supreme Court of India reported in Rajaram Prasad Yadav – Versus – State of Bihar AIR 2013 SC 3081 ( para 23), in the interest of administration of Justice.

 

12.                That unless the Learned Court pleased to dismissed the application under Section 311 Cr.P.C. of the prosecution witness, the petitioners being the accused will highly prejudice and suffer with irreparable loss and injury thereof.

 

13.                That this application is made bona-fide and in the interest of administration of Justice.

 

It is therefore, prayed that your Honour would graciously be pleased to allow this written objection of the petitioner accused and to dismissed the application under Section 311 Cr.P.C. of the prosecution witness, in the interest of administration of Justice, and or to pass such other order or orders as your Honour may deem, fit and proper for the end of justice.

 

And for this act of kindness, the Petitioner as in duty bound shall ever pray.