ORDER
D.K. Sinha, J.
1. The petitioner, Dr. Bhuneshwar Sahay, has preferred this petition under Section 482 of the Code of Criminal Procedure for setting aside the order dated 4.8.2006 passed by Shri J.K.N. Tiwari, Special Judge, Ranchi in R.C. Case No. 43(A)/96 and for further direction that the main Investigating Officer who has been examined as PW 49 be recalled and the petitioner be permitted to examine him.
2. The petitioner by an application dated 23.2.2006 had earlier requested the Court below not to examine the Investigating Officer prior to the completion of the examination of the other material witnesses to be produced on behalf of the prosecution in respect of the allotment and sanction on the allegation of illegal withdrawal of fund from the Treasury. But surprisingly, no order was passed by the Court below in-spite of the date fixed for orders on the said application of the petitioner and the prosecution was permitted to examine the Investigating Officer inspite of the protest of the petitioner.
3. The learned Counsel submitted that on 28.4.2006 the Investigating Officer was examined and was discharged and thereafter a petition was filed on behalf of the prosecution for recall of PW 49, Investigating Officer and accordingly, the prayer of the prosecution was allowed on 15.5.2006 and the prosecution was further examined ” on 18.5.2006 and he was discharged.
4. During such examination (re-examination) of the Investigating Officer, so many contradictions appeared including the facts beyond what Investigating Officer has deposed in his examination-in-chief. The Investigating Officer, Thomas John, proved the letter No. 20815 dated 1.4.1995 but no seizure list was produced by any of the Investigating Officers. In this context the petitioner along with other co-accused preferred an application for recall of IO on 24.7.2006. Though the Court directed to put up the said petition on the date fixed i.e. 14.8.2006 but without any order on such petition the trial Court fixed the case for the statements of the accused persons under Section 313 of the Cr PC.
5. On 4.8.2006 the trial Court below observed that there was no need to recall the Investigating Officer on the ground that the defence has every right to argue on this point in course of final argument which is order impugned in the instant application.
6. The learned Counsel further submitted that denial of such opportunity to the petitioner to cross-examine the IO on the development made during his re-examination is violative of the natural justice for which the petitioner is highly prejudiced. The order impugned dated 4.8.2006 is unsustainable in view of the settled principle of procedure that the main Investigating Officer is supposed to be examined on behalf of the prosecution only at the end of the prosecution evidence because of the reason that he is supposed to narrate his objective finding and for attracting his attention towards the omission, commission, contradiction and development made by other witnesses beyond what they had narrated under Section 161, Cr PC. But it could not be and in this manner the petitioner has been deprived of putting his case properly in his defence.
7. Advancing his arguments Mr. S. Nr. Prasad, the learned Counsel submitted that the letter vide memo No. 20015 dated 1.4.2005 (Ext. 11/11) and its reply being memo No. 259 dated 10.4.1995 (Ext. 11/12) were proved on 18.5.2006 without the copy of Ext. 11/11 being given to the petitioner and the same was not appearing in the charge-sheet with list of the documents relied upon by the IO. On the other hand the learned Court below observed:
However, it may be said that Ext. 11/11 does not appear irrelevant because Ext. 11/12 appears to be the reply letter of the letter Ext. 11/11 and the letter being Ext. 11/12 is already mentioned in the list of documents in the charge-sheet in the impugned order dated 4.8.2006.
8. Mr. Prasad relied upon the decision reported in AIR 1978 SC 1558. The Apex Court in Rameshwar Dayal and Ors. v. State of U.P., observed:
The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal P.C. but also of the principles of natural justice and offends the famous maxim audi alteram partem.
9. In the same decision the Hon’ble Apex Court observed:
Section 540 (New 311) itself incorporates a rule of natural justice. The accused is presumed to be innocent until he is provide guilty. It is therefore, manifest that where any fresh evidence is admitted against the accused, the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut the evidence.
10. Mr. Rajesh Kumar learned standing counsel on behalf of the CBI submitted that, the petition under Section 482 of the Code of Criminal Procedure filed on behalf of the petitioner is unsustainable. The petitioner has brought about such petition adopting delaying tactics. After examination of the Investigating Officer it would be evident from the order impugned that more than 20 days were given to the prosecution for evidence till the closure of the prosecution evidence on 20.7.2006 but the petitioner did not opt to file any such petition for recall of the IO and the learned trial Judge has very fairly accorded opportunity to the petitioner and others that such issue may be raised at the time of final argument. He finally submitted that admittedly Ext. 11/11 was not there with the charge-sheet but it is wrong to say that it did not contain Ext. 11/12.
11. Having regard to the facts and circumstances of the case, I find from the fact that letter vide memo No. 20015 dated 1.4.2005 was introduced for the first time by the Investigating Officer and was proved without its reference in the charge-sheet containing the list of documents and a copy of such letter was not given to the accused which was mandatory in nature before accused was put on trial. The said document was proved as Ext. 11/11 by the prosecution on recalling the Investigating Officer but without opportunity to the petitioner for its rebuttal. It is settled law that duty of a Court is not only to do justice but also to ensure that the justice is being done. The observation of the trial Court below according opportunity to the petitioner to raises the issues or the matter related to Ext. 11/11 at the time of the argument is unsustainable in view of the fact that the same is proved document without opportunity to the other side for its rebuttal which may cause prejudice to the defence and violative to the principle of audi alteram partem.
12. In view of the fact, the order impugned passed by the Special Judge, CBI, Ranchi on 4.8.2006 in R.C. Case No. 43(A)/96 is set aside with the direction to the trial Court below to accord opportunity to the petitioner for the rebuttal of Ext. 11/11 by recalling the concerned Investigating Officer positively within four weeks from the date of receipt/production of a copy of this order.
13. With the aforesaid observation this petition is allowed.