JUDGMENT
I.M. Quddusi, J.
1. This application under Section 482 of Criminal Procedure Code has been filed by the petitioners with a prayer to quash the order dated 8.11.2004 passed by the learned Assistant Sessions Judge, Cuttack and to direct the Court below to record defence evidence after completion of evidence of the prosecution.
2. The brief facts of the case are that the petitioners are accused in S.T. No. 527 of 1997 in which the prosecution evidence was closed on 17.7.2004 fixing 19.4.2004 for recording the statement of the accused persons; but their statements were recorded on 23.8.2004 when they desired to adduce evidence. It appears that before recording their statements, i.e., on 23.8.2004, an application was moved on 19.7.2004, by the learned counsel for the petitioners Under Section 311 Cr.P.C. to recall P.W.2. This was necessary as they wanted to put questions to P.W.2 to the effect whether he had sustained any injury or there was any dislocation of his right shoulder prior to alleged incident, because he is the witness who came after them and was present at the time of alleged incident and whether he had disclosed the alleged incident to the attending doctor. Other material questions were also to be put by them. But as the said application was not allowed, the petitioners approached this Court in Crl. Revision No. 590 of 2004 which was decided 10.9.2004 with a direction to recall P.W.2 for his further cross-examination by defence. Thereafter the learned Assistant Sessions Judge summoned P.W.2 for cross-examination but at the same time he directed the petitioner to adduce defence evidence, if any, after cross-examination of P.W.2 on which an application was moved by the petitioners with a prayer to allow them to adduce defence evidence only after completion of prosecution evidence. The same was rejected vide impugned order dated 8.11.2004.
3. Being aggrieved by the impugned order, this petition has been filed.
4. Learned counsel for the petitioner has urged that after cross-examination of P.W.2 is over only then the petitioners would be able to decide as to what defence further is required to be produced. Therefore, at this stage, when the cross-examination of P.W.2 has not been done, calling upon the accused persons to adduce defence evidence, if any, pending further cross-examination of P.W.2 is against the law and is abuse of the process of the Court which is liable to be prevented by this Court in exercise of its inherent powers Under Section 482, Cr.P.C.
5. Before proceeding further, the relevant part of the impugned order dated 8.11.2004 passed by the learned Assistant Sessions Judge in the above mentioned sessions trial is liable to be perused which is quoted below :
“This order arises out of the petition dated 1.11.2004 filed by the accused persons through their counsel wherein prayer is made to allow the accused persons to adduce defence evidence after completion of prosecution evidence.
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In this case prosecution evidence was closed on 17.7.2004 fixing 19.4.2004 for statement of the accused persons since when the case lingered at the stage of accused persons till 23.8.2004 on which date after recording of the statement of the accused persons they desired to adduce defence but again the case linger till 14.9.2004 at the stage of defence evidence on which date the accused persons brought an order of the Hon’ble Court in Criminal Revision Case No. 590 of 2004 to recall P.W.2 for his further cross-examination by defence. In response to the orders of the Hon’ble Court when P.W.2 has been summoned time and again for his attendance in the Court for cross-examination by defence, for early disposal of the case the Court at the same time directed the defence to adduce defence evidence, if any, pending further cross-examination of P.W.2 as desired by the defence. In that background instead of adducing defence the defence has come to with the prayer as above for the reason not known.”
6. Recalling of prosecution witness amounts to reopening of prosecution evidence and it cannot be deemed that the prosecution evidence has been closed. The cross-examination is a part of the statement of prosecution evidence and the prosecution evidence can be deemed to be closed when the cross-examination of the prosecution witness is completed. It is also to be noticed here that some times a situation arises whether in the cross-examination the prosecution witness narrates a story contrary to the prosecution case and in that case the prosecution may come up with the prayer to declare such witness as hostile. Therefore, once a prosecution witness has been called upon for cross-examination, it cannot be deemed that the prosecution evidence has been closed and, therefore, after closure of the prosecution evidence the procedure laid down in the Code of Criminal Procedure has to be taken by the learned Court below. In this regard the provisions of Sections 230 to 233, Cr.P.C. are liable to be perused which are reproduced as under :
“230. Date for prosecution evidence-If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under Section 229, the Judge shall fix a date for examination of witnesses and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.
231. Evidence for prosecution- (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
232. Acquittal-If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judges shall record an order of acquittal.
233. Entering upon defence – (1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.”
6. A bare perusal of Section 231 shows that first of all the Judge has to proceed to record prosecution evidence and, thereafter the stage of Section 223, Cr.P.C. comes meaning thereby that after closure of the prosecution evidence, the Judge has to examine the accused and the prosecution and defence on the point and if he considers that there is no evidence that the accused committed any offence, the Judge shall acquit the accused. But, in case he does not reach at the conclusion on the basis of prosecution evidence that the accused has not committed any offence, he shall be called upon to enter on his defence and adduce evidence which he may think in his support. Therefore, first of all after closure of the prosecution evidence, the learned Assistant Sessions Judge has to see whether it is a case of no evidence or not. If he comes to the conclusion otherwise as mentioned above, then he has to proceed in accordance with Section 233, Cr.P.C. as quoted above. It is not permissible under law to convict an accused without calling upon him to adduce his evidence in defence. Therefore, it was not open to the learned Assistant Sessions Judge to direct the defence to adduce evidence, if any, pending further cross-examination of P.W.2. Therefore, the impugned order issuing such directions is against the provisions of law and is an abuse of the process of the Court. Therefore, in the opinion of this Court the instant case is a fit case for interference in exercise of the powers conferred on it under Section 482, Cr.P.C. to prevent abuse of process of Court.
7. In the result the petition is allowed. The impugned order dated 8.11.2004 passed by the learned Assistant Sessions Judge, Cuttack in S.T. Case No. 527 of 1997 is quashed. The learned Assistant Sessions Judge is directed to proceed with the trial in accordance with the provisions of Criminal Procedure Code in the light of the observations made above.