Case Title: CHUTTA MIAH vs. STATE
Reference: 56 DLR (HCD) (2004) page 610.
Author Judge: Afzal Hossain Ahmed J.
Fact of the case:
The petitioner Chutta Miah along with other co-accused was being tried u/s 302/34 of the PC, 1860 on the charge of murder of Abdul Awal under Sessions Case No. 104/2001 of Brahmanbaria Sessions Court. During the trial, the accused petitioner Chutta Miah remained absconded. The trial in absentia was running by maintaining all the legal formalities & all of 14 PWs were cross-examined. After the arrest on 14.02.2004, he was produced before the Court on 17.02.2004. On the same day, the Court declared the closure of the PWs & also fixed 19.02.2004 for the examination of the accused u/s 342 of the CrPC, 1898. He claimed for recalling the PWs by showing the ground that, due to his absence, he could not attend on the cross-examination of the PWs. But the Court rejected the application for recalling witness for cross-examination on the ground that a State defense lawyer was appointed for defending him who cross-examined all the PWs on his behalf. Being aggrieved, the petitioner sought criminal revisional jurisdiction of the High Court Division.
Arguments of the parties:
The Learned lawyer Mr. Md. Rafiqul Hossain, appeared on behalf of the petitioner, submitted that,
“Since the petitioner has been facing trial in case of capital punishment he should have been afforded with every single opportunity to defend himself and also to show his innocence, if any, by crossing the witnesses of the prosecution. But the learned Brahmanbaria Sessions Court rejected the application without considering the situation of the accused which has resulted in the failure of justice to the petitioner.”
He also referred section 540 of CrPC which gives free license to the Judge to recall and re-examine any witness at any stage of the judicial proceedings for the ends of justice. Section 540 states that;
“Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, 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; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
The learned Assistant Attorney General Mr. Md. Rabiul Karim, opposed the submission of the learned lawyer of the petitioner by referring the decision of the case of Nazrul Islam @ Munto vs. State reported in 1999 BLD 188, though the Judges did not found any similarity on facts & circumstances.
Observation by the Honorable High Court Division:
By examining the depositions of the witnesses the High Court Division opined that,
“No serious effort to elicit any benefit for the accused petitioners or to put any suggestion to the PWs challenging the veracity on material particulars during cross-examination of the PWs, rather he perfunctorily simply discharged his responsibility only by adopting the cross-examination done on behalf of the other accused.”
By referring the Legal Remembrancer’s Manual, 1960 the Court further expressed that,
“In case of Capital punishment, the petitioner, whether he remained a fugitive or not during trial, he should be given adequate opportunity to defend himself for the ends of justice.”
The Honorable High Court Division opined that,
“The petitioner should be provided with the opportunity to make out his case, if any, by cross-examining the PWs which is essential to the just decision of the case and in the circumstances as aforesaid had he not been given such opportunity it may cause prejudice to the petitioner.”
Considering all the above aspects of the matter The Court found merit in this rule and, as such, the Judges are inclined to hold that the application in question filed by the accused petitioner in the Court below for recalling the PWs should be allowed to meet the ends of justice and such scope is available inasmuch as the trial of the case is not yet concluded.
The Court finally made the rule absolute. The decision of the trial Court was declared set-aside and the learned trial Court below was directed to allow the recalling of PWs by following the observations of the Court.