26.

22-04-2025
(ct. no.07)
debajyoti
CRR 998 of 2025
In re: An application under Section 401 read with Section
482 of the Code of Criminal Procedure/Section 442
read with Section 528 of the Bhartiya Nagarik
Suraksha Sanhita.

-And-

In the matter of : Prabir Kumar Dutta

.... Petitioner.
Mr. Pradip Kumar Roy, Sr. Adv.,
Mrs. Dipanwita Sarkar
… For the Petitioner.

Mr. Debasish Roy, learned Public Prosecutor,

Mr. Joydeep Biswas,
Mr. Dipankar Paramanick
… For the State.

1. This revisional application has been filed challenging

three orders dated 16.12.2023, 05.02.2025, and
06.02.2025 passed by the learned Court of the Additional
Sessions Judge, Bolpur, Birbhum, in Sessions Case No. 35
of 2020 corresponding to S.T. no. 1(1) of 2022, arising out
of Bolpur Police Station Case No. 245 of 2016 dated 21st
September 2016, registered under Sections 323, 325, 419,
420, 304, and 201 of the Indian Penal Code.
2. One Raju Thandar had been arrested by the present
petitioner during his tenure as the Officer-in-Charge of
Bolpur police station under Section 34 of the Police Act.
The genesis of the case lies in the incident involving the
alleged custodial death of the said Raju Thandar, which is
regarded as one of the gravest forms of crime in a civilized
society, particularly egregious when committed by an
individual entrusted with the role of protector of citizens
and guardian of their fundamental rights, acting under the
authority and shield of the uniform.
3. The FIR was lodged in the year 2016. Upon conclusion of
the investigation, a charge sheet vide. Bolpur P.S. C.S. no.
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116 of 2020 dated 8.6.2020 was submitted against one

Nantu Jash @ Baban U/s. 323/325/419/420/304/201
IPC Subsequently, a supplementary charge sheet vide. no.
229 of 2020 dated 3.10.2020 U/s.
166/167/323/325/343/304/201 IPC against the
petitioner. Following the completion of all requisite legal
formalities, the case was committed to the Court of
Sessions and subsequently transferred to the learned Court
of the Additional District and Sessions Judge, Birbhum, for
trial.
4. The petitioner surrendered before Narendrapur Police
Station, District – South 24 Parganas, on 08.11.2020, and
was subsequently taken into custody. The case was fixed
for framing of charge; however, the petitioner got himself
admitted to a hospital, which led to a delay. Ultimately,
charges were framed on 12.01.2022. The petitioner is
presently undergoing trial while in custody.
5. The petitioner made several attempts to secure bail by
filing repeated applications before this Hon’ble Court, but
was unsuccessful in obtaining a favourable order of release.
In a bail application registered as CRM (DB) No. 3018 of
2023, a Hon’ble Division Bench presided over by the
Hon’ble Justice Joymalya Bagchi (as His Lordship then
was), in its order dated 10th August, 2023, took serious
note of the lackadaisical manner in which the prosecution
had been conducted by the Public Prosecutor. The Hon’ble
Bench further observed that the Public Prosecutor had
failed to properly examine vital witnesses, which led the
Hon’ble Bench to direct the Legal Remembrancer to take
immediate steps for the removal of the said Public
Prosecutor and to appoint a Special Public Prosecutor to
conduct the trial. Additionally, the Hon’ble Division Bench
observed that it would be open to the Special Public
Prosecutor to recall any prosecution witnesses, if
necessary, to ensure a just decision of the case.
 3

6. The petitioner states that, pursuant to the liberty

granted by the Hon’ble Division Bench, the prosecution
recalled as many as 18 witnesses. Of them, all were
examined and duly cross-examined by the petitioner,
except for three witnesses. During the examination-in-chief
of PW 9, PW 27, and PW 28, certain untoward incidents
occurred within the courtroom. Following a heated
altercation, the defence counsel representing the present
petitioner left the courtroom without conducting cross-
examination of those three witnesses. The learned trial
court recorded that the defence had declined to cross-
examine the said witnesses and proceeded further with the
trial by passing orders dated 05.02.2025 and 06.02.2025.
These two orders, along with the earlier order dated
16.12.2023 whereby the prosecution’s prayer for recalling
18 witnesses was allowed, have been challenged in the
present revisional application.
7. Mr. Roy, learned senior advocate appearing on behalf
of the petitioner, in addition to advancing oral submissions,
has also submitted a written note of arguments. The crux
of Mr. Roy’s submissions is that the accused was not, and
is not, being afforded a fair and proper opportunity to
defend himself before the trial court. It is contended that,
during the examination of the three witnesses in question,
the prosecution persistently posed similar questions to
those three witnesses in an attempt to elicit answers
favourable to its case. These actions infuriated the learned
defence counsel and as such, he left the courtroom without
conducting the cross-examination of those three witnesses.
8. Mr. Roy contends that the learned court below,
without adhering to the principles enunciated in Section
311 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code'), has mechanically recalled the
witnesses at the prosecution's instance. Furthermore, he
alleges that by permitting the prosecution to repeatedly
 4

pose the same questions to those witnesses, the learned

court acted in a biased manner. He also argues that the
petitioner’s right to a speedy trial has been violated, as the
prosecution is causing undue delay in the conclusion of the
trial. Quite apart from that, Mr. Roy prays for an order
enabling the petitioner to cross-examine those three
witnesses.
9. Mr. Debasish Roy, learned Public Prosecutor, opposes
the contention raised on behalf of the petitioner. He
contends that previously, the petitioner got a friendly
prosecutor. The Hon’ble Division Bench while dealing with
the application for bail , CRM (DB) No. 3018 of 2023
noticed that the then special public prosecutor had been
conducting the prosecution in lackadaisical manner. The
Hon’ble Bench further observed that the then special
Public Prosecutor had failed to properly examine vital
witnesses. The Hon’ble Bench directed removal of the then
Public Prosecutor and appointment of new Public
Prosecutor instead. The Hon’ble Bench granted liberty to
the prosecution to recall the witnesses. In compliance with
the order of the Hon’ble Division Bench, a New Public
Prosecutor was appointed to conduct the prosecution and
pursuant to that liberty, the witnesses were re-called for a
just decision of the case. He submits that the learned
defence counsel could have recorded his objection and
conduct the cross-examination. He submits that conduct of
the learned defence counsel was not proper.
10. Although the petitioner participated in the trial and
cross-examined all the witnesses who were recalled under
the provisions of Section 311 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'the Code'),
except for the three witnesses mentioned earlier, he has
nonetheless challenged the order by which such recall was
permitted. The order dated 16th December, 2023 indicates
that the learned trial court exercised its powers under
 5

Section 311 of the Code pursuant to the directions issued

by the Hon’ble High Court in CRM (DB) No. 3018 of 2023.
The order dated 10th August, 2023, passed in CRM (DB)
No. 3018 of 2023, has not been challenged by the petitioner
and has, in fact, been accepted by him. Accordingly, the
said order has attained finality and is binding on both the
petitioner and the prosecution, and a substantial part
thereof has already been acted upon. Moreover, at this
stage, entertaining a challenge to the order passed by the
learned trial court under Section 311 of the Code—when
such order was passed in compliance with the directions of
the Hon’ble Division Bench—would, in effect, amount to
sitting in appeal over or exercising revisional jurisdiction
against the order of the Hon’ble Division Bench, which, in
my considered view, would not be appropriate for this
Court.
11. The gravity of the situation and the prevailing
atmosphere in the courtroom can be better understood
upon a perusal of certain excerpts from the orders dated
05.02.2025 and 06.02.2025 passed by the learned trial
court. In its order dated 05.02.2025, the learned court
observed as follows:

“The witness Gopal Chandra Chanda, retired SI of

Bolpur Police Station, has been examined in
chief in full as PW 7 and during cross-examination Ld
Lawyer for the accused Prabir Kr Dutta, left the court
saying that he would not cross-examine the witness
and the court may do whatever pleases to do, raising
misconceived, unfounded and baseless allegation
against the learned Special Public Prosecutor to the
effect that the Special Public Prosecutor was
threatening the witness in dock to depose in a
particular way”.
 6

12. Similarly, in the subsequent order dated 06.02.2025,

the learned court below recorded the following
observations:
“It appears that the Ld Defence Counsels made some
wild, motivated, fabricated, false concocted and
contemptuous allegations against the Ld Special Public
Prosecutor as well as the presiding officer of this Court
in the petition dated, 05.02.25 (filed on 06.02.25).
It further appears that the instant petition of defence
counsels for accused – Prabir Kumar Dutta is primarily
directed to disturb, delay and derail the proceedings of
the instant case. It further appears from record that
this attitude of Ld Defence Counsels have occurred not
for the first time on 5.2.25 but on previous occasions
too ie on 8.2.24, Ld Defence Counsels have done the
same thing raising wild allegations against the Court
and to disturb and delay the proceedings they have
left the Court and finding no other alternative this
Court was constrained to close the cross examination
of PW-9-Biru Bauri on the said day ie on 08.02.24.

The approach adopted by the Ld Defence Counsels for

accused Prabir Kumar Dutta is quite unethical and
disturbing one and the same is also against the
judicial discipline and affecting the smooth functioning
of the Court.”

13. The legal profession is often regarded as a noble one,

as it is rooted in the pursuit of justice and the protection of
individual rights. A lawyer plays a vital role in the
administration of justice and owes a duty of fairness not
only to their client, but also to the court and the opposing
party. The administration of justice is a sacred stream that
must remain unpolluted. It is the responsibility of all
individuals involved in judicial process to ensure its smooth
and uninterrupted flow, without causing any obstruction or
hindrance.
14. In catena of judgments, the Hon’ble Supreme Court
observed that a trial Judge, who is entrusted with the
responsibility of monitoring the conduct of a trial, acts in
the greater interest of society. A strong and efficient
criminal justice system is a cornerstone of the rule of law in
 7

a vibrant civil society. The effectiveness of a democratic

system is, in many ways, reflected in the manner in which
its criminal justice system functions. The criminal justice
system imposes a solemn duty upon the trial Judge to keep
control over the proceedings. It must be placed on a proper
pedestal and cannot be subjected to the whims and fancies
of the parties or their counsel. A trial Judge is not expected
to remain a passive spectator, rather, he is required to play
a participatory and proactive role to ensure that the
criminal trial is conducted fairly, efficiently, and in
accordance with the law. He will not allow any criminal trial
to be dealt with at the hands of the parties to the trial.
15. Admittedly, the conviction rate in our country
remains considerably low. Experience shows that once a
criminal case is registered and a charge sheet is filed upon
completion of investigation, deliberate efforts are often
made to delay the proceedings until the all witnesses is won
over. It is a disheartening state of affairs that, within our
criminal justice system, accused persons frequently resort
to various tactics aimed at prolonging the trial. This
includes repeatedly seeking adjournments and invoking the
jurisdiction of higher courts on trivial grounds, all with the
intention of securing a favourable outcome of the trial.
16. A lawyer, as well as a judge, bears the responsibility
of ensuring that court proceedings are conducted in a
dignified and congenial atmosphere. Both are equal in
status within the framework of the justice delivery system
and must recognize that the criminal justice system
functions not only in the interest of individual litigants but
also for the protection of society as a whole.

17. If any question was put by the prosecution to the

three witnesses in question or to any of the other recalled
witnesses which, in the opinion of the learned defense
counsel, was irrelevant, inadmissible, or in violation of any
 8

legal provision, such as Section 145 of the Indian Evidence

Act, the proper course of action would have been to raise
an objection and have the same recorded by the Court.
Instead of withdrawing from the proceedings, the defense
counsel could have objected to the specific question or
answer, thereby preserving the issue for argument at the
appropriate stage. It is a well-established practice that
when an objection is raised during the recording of
evidence, the Court typically records it with the remark
'objected to,' thus ensuring that the objection remains on
record for future consideration
18. Needless to state, even after the conclusion of an
accused person's examination under Section 313 of the
Code, he retains the right to adduce evidence in his
defence. However, it is not expected that merely because a
question is asked or accepted by the Court, which, in the
opinion of the accused or his counsel, may not be in
accordance with law, the congenial atmosphere of the
courtroom should be disturbed. It is wholly inappropriate
for a learned lawyer, instead of discharging the professional
duty for which he has been engaged, to abandon the
proceedings and leave the courtroom while making
unfounded aspersions against the Public Prosecutor and
the Court.
19. Section 311 of the Code is framed in language that
confers wide discretionary power upon the Court. Notably,
in the second part of the provision, the legislature has
consciously employed the word 'shall', thereby making it a
legislative mandate that, if it appears necessary for a just
decision of the case, any person, even if not previously
summoned, may be examined. This includes individuals
present in court who, in the opinion of the Court, are
conversant with the facts and circumstances of the case or
may be capable of assisting in unfolding the prosecution’s
 9

case more effectively. Moreover, a witness already examined

may also be recalled and re-examined.
20. Although the provision does not lay down
specific guidelines as to whether the use of the term 're-
examine' entitles the prosecution to put forth the same
questions again, or whether such repetition would violate
Section 145 of the Indian Evidence Act, any concern in that
regard could and should have been addressed by the
defence through a properly recorded objection at the
relevant stage.
21. Mr. Debashis Roy, learned Public Prosecutor, though
not expressly conceding to the petitioner’s request for an
opportunity to cross-examine the three witnesses, has, in
his usual fairness, submitted that if this Court considers it
appropriate, it may direct the learned trial court to afford
the petitioner an opportunity to cross-examine the said
witnesses, namely, PW 9, PW 27, and PW 28.
22. In view of the fair and reasonable stance taken by the
State, this revisional application is disposed of with a
direction to the learned trial court to fix two dates after the
next schedule fixed for the examination of prosecution
witnesses, in order to afford the petitioner an opportunity
to conduct and complete the cross-examination of PW 9,
PW 27, and PW 28. If the accused or his authorised
representative avails himself of the opportunity granted, the
learned trial court shall proceed to record the evidence
emerging from the cross-examinations of the said three
witnesses. In the event the petitioner fails to avail such
opportunity, the learned court shall record that the cross-
examination of PW 9, PW 27, and PW 28 have been
declined by the petitioner.
23. It is expected that on the scheduled dates, the
defence counsel, who is also a respected member of the
extended judicial fraternity, shall uphold the decorum and
dignity of the institution and confine his questions to those
 10

that are relevant, admissible, and necessary for arriving at

a just and proper adjudication of the case.
24. In the present case, both the prosecution and
the accused are not free from blame for causing the delay,
with the petitioner having sought adjournments on several
occasions. It is, however, expected that the trial shall now
proceed with due expedition and be concluded
expeditiously, keeping in view the mandate of Article 21 of
the Constitution of India, which guarantees the right to a
speedy trial as an essential facet of the right to life and
personal liberty.
25. It is imperative to clarify that the learned Court
below shall closely monitor the trial and ensure its
expeditious disposal. The learned Judge shall not be
oblivious to the fact that he has taken an oath to
administer justice impartially, without fear, favour, or ill
will. If the learned Judge finds the conduct of the defence
counsel to be unbecoming of a member of this noble
profession, it is within his authority, under the provisions
of the Indian Penal Code and the Advocates Act, to take
appropriate action. Furthermore, if the situation so
warrants, the learned Judge may bring the matter to the
attention of this Hon'ble Court.
26. With these observations and order, the revisional
application is disposed of.
27. All parties shall act on the server copies of this
order duly downloaded from the official website of this
Court.
28. Criminal Section is directed to supply certified
copies of this order to the parties, if applied for, upon
compliance of all necessary formalities.

Let a copy of this order be sent to the Ld. Court

below forthwith.

(Partha Sarathi Chatterjee, J.)