Orissa High Court
Karam Chand Mukhi And Ors. vs Santosh Pradhan And Anr. on 5 July, 2004
Equivalent citations: 2004CRILJ4380
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Heard.
2. This application under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') stands disposed of at the stage of admission, on hearing learned counsel for the petitioners, accused-opposite party No. 1 and learned Standing Counsel appearing on behalf of the State.
3. The point of controversy, which has arisen in this case, is not a common feature which is experienced generally in usual course of a sessions trial. To appreciate that the fact situation relevant for the purpose, is succinctly noted :
Opposite party No. 1 as the sole accused is facing trial in S.T. Case No. 14 of 2002, pending in the Court of C.J.M.-cum-Asstt., Sessions Judge, Phulbani. Charge for the offences under Sections 376/306, I.P.C. has been framed. In November, 2002 learned Additional Prosecutor filed an application to examine four persons as witnesses on behalf of the prosecution outside that list of charge-sheeted witnesses. Petitioners are three out of them. Learned Asstt. Sessions Judge rejected that application inter-alia, on the grounds that :
(i) their statement is not available to the Court; and
(ii) their evidence is not essential for proper adjudication of the case.
4. As against that order, the prosecution preferred Criminal Revision Petition No. 61 of 2002 in the Court of Sessions Judge, Phulbani. After hearing the prosecution and the accused, learned Sessions Judge passed order directing examination of the fourth person, viz., Tuku alias Manoj Kumar Sahoo, who is a photographer and so far as the present petitioners are concerned, he did not interfere with the order of the trial Court. Thereafter, petitioners filed their statements in the shape of affidavits and through a private counsel applied in the trial Court for their examination as prosecution witnesses. Learned Addl. Public Prosecutor did not oppose to that motion. In other words, he supported that motion of the three petitioners. Learned Asstt. Sessions Judge, as per the order passed by him on 26-3-2004, rejected that application on the grounds that : (i) in view of the provision in Section 301(2) of the Code, a private counsel has no locus standi to address the Court when a Public Prosecutor has been engaged; (ii) petitioner No. 2, Kamaraj Kanhar in his statement under Section 161 of the Code (found in the case diary) did not support the prosecution in any manner and the other two petitioners were not at all examined by the Investigating Officer in course of the investigation; and (iii) the earlier order passed by the same Court in rejecting the application filed by the Addl. Public Prosecutor having been confirmed by learned Sessions Judge in the above noted Criminal Revision Petition No. 61 of 2002, there is no scope to review that order.
5. Petitioners, thus, instituted Criminal Revision Petition No. 26 of 2003 challenging to the aforesaid order of learned Asstt. Sessions Judge. Learned Sessions Judge on 28-6-2003 dismissed that revision petition in the self-same grounds. In that context, learned Sessions Judge also noted that:
The alleged occurrence took place on 21-3-2001. These two witnesses have sworn affidavits on 22-2-2002, i.e. about after one year of the occurrence. There is nothing on record that these two witnesses have earlier approached the Investigating Agency or the Court to be examined as witnesses in this case. The Investigating Officer (P.W. 11) is a public servant and there is no reason why, he will not record the statements of the witnesses if the witnesses have given statements before him and there is no reason why he will suppress the material witnesses. Thus it appears that the affidavits filed by these two witnesses is after-thought and the learned lower Court has rightly rejected their petition to examine them as witnesses in this case."
6. Mr. J.R. Das, learned counsel for the petitioners, while reiterating the prayer of the petitioners, argues that Courts are there to render substantial justice to the parties and not to resort to technicalities to nip at the bud a just contention which is advanced in the interest of justice. Accordingly, he states that prayer of the petitioners for their examination as eye-witnesses to the occurrence be ordered by invoking inherent power under Section 482, read with Section 311 of the Code. Learned counsel for the accused/opposite party No. 1 on the other hand challenges to the maintainability of this application on the ground that a second revision in the guise of application under Section 482 of the Code, is not maintainable. On merit, he argues in support of the impugned order. Learned Standing Counsel on the other hand makes a fair statement that, after rejection of the application filed by the prosecution and when there was no challenge to that order either by the prosecution or the victim or the informant, the earlier order in the context of prayer for examination of additional witness has reached its finality. Notwithstanding that, according to him, if the trial Court finds that examination of the petitioners is necessary in the interest of justice, then the trial Court can invoke the provision in Section 311 of the Code and pass appropriate order suo motu.
7. Under the given facts and circumstances and in view of the aforesaid submission, two moot points arise for the consideration, viz. :
(i) Whether petitioners have the locus standi to file the application for their examination?
(ii) Whether the trial Court is required to consider the prayer under Section 311 of the Code and to pass appropriate order under the said provision of law?
8. Before dealing with the above aspect, contention of the opposite party No. 1 on the maintainability of the application under Section 482 of the Code is required to be considered.
9. Sections 397 to 403 in Chapter XXX of the Code are the relevant provisions providing the manner in which power of superintendence and revision is to be exercised by any Sessions Judge and the High Court. Such power has been conferred concurrently on the said two categories of Courts. Sub-section (3) of Section 397 prohibits entertaining a second application for revision filed by the same person. When the revisional power is such, Section 482 of the Code indicates the manner and the circumstances under which such power is to be exercised by the High Court. Section 482 provides that when the High Court finds it necessary to pass appropriate order to give effect to any order under the Code, or to prevent the abuse of the process of any Court, or otherwise there is necessity to pass appropriate order to secure the ends of justice, then it may invoke the inherent power notwithstanding any provision in the Code. It is the settled position of law that a second revision-application in the guise of application under Section 482 of the Code is not to be entertained unless any or all of the aforesaid aspects provided in Section 482 of the Code is attracted to the facts and circumstances involved in the case. The contention of the parties and the facts involved in the case do not make out to the ingredients of "to give effect to any order under this Code, or to prevent abuse of process of any Court", as provided in Section 482 of the Code. Therefore, petitioners rest their case to the last category of the circumstances, i.e., to pass appropriate order "to secure the ends of justice". In that context they take aid of Section 311 of the Code. Therefore, notwithstanding rejection of the application filed by the prosecution in the earlier occasion and rejection of the application filed by the petitioners in the later occasion with the confirming orders of the Sessions Judge in the Criminal Revisions, this Court still has the jurisdiction to pass appropriate order by invoking inherent power, provided that is necessary for the ends of justice. Thus, consideration of the contention of the petitioners in accordance with the provision in Section 311 of the Code is the crux to determine whether inherent power should be invoked in this case. Therefore, the aforesaid contention of the opposite party No. 1 does not lead to a circumstance to reject the application under Section 482, on the ground of maintainability, at the threshold.
10. Much emphasis has been given by the trial Court to the provision in Section 301(2) of the Code while dealing with and disposing of the application of the petitioners. The view expressed by the trial Court is undoubtedly general proposition in that context, but the Courts below did not consider the stand of the State represented by the Addl. Public Prosecutor that it conceded to the motion made by the petitioners. So, any application moved by a private individual can be considered by the Court and not to be rejected on the ground of absence of written consent when the prosecutor makes oral submission in the Court supporting the motion of the private person. Beyond this, there is nothing to deliberate on the issue inasmuch as it is to be found out whether there was necessity for the trial Court to suo motu invoke the jurisdiction under Section 311 of the Code and permitting the petitioners to be examined as additional witnesses in support of the charge.
11. It is stated at the Bar that none of the petitioners is the informant/complainant or subject of victim of the alleged criminal action of the opposite party No. 1. Therefore, they do not assume the status of a party to the proceeding. Under such circumstance, they do not have the locus-standi to apply for their examination as witnesses. Their attempt to get examined was negatived by the Courts below when applied by the prosecution. That order reached its finality so long as the trial is pending. In case of appeal or revision against the final decision of the trial Court, prosecution or the complainant, if aggrieved by the said denial of the trial Court, may put-forth their grievance before the superior Court for due consideration. Therefore, that issue relating to examination of the petitioners should not have been given a new lease of life by the petitioners by filing separate application in the present manner. However, the matter would have been different if the informant/complainant would have approached the Court appropriately. In other words, any person being not a party to the litigations or a victim of the act of criminality, cannot approach the trial Court in the manner the petitioners have done. Thus, there is no hesitation to record that the conclusion of the Courts below denying locus-standi of the petitioners to move the application under Section 311 is correct though for the different reason, as assigned above.
12. In course of an investigation and submission of Final Form (charge-sheet), there is chance of non-mentioning of the names of the material witnesses. It may be due to accidental slip, non-availability of the relevant clue and therefore non-examination of such persons in the course of the investigation or due to intentional action of the investigating agency either to show a favour to the accused or disfavour to the complainant/victim. In such a case it is the duty of the prosecution to bring on record the relevant facts and circumstances and to apply to the Court for due consideration of invoking the power under Section 311 of the Code and to examine such persons as witnesses. The provision in Section 311 of the Code emphasises on the principle of providing substantial justice to the parties. In that context 'parties' means both accused and the complainant. Neither category of the persons are to be excluded while considering the question of advancement of substantial justice. If the prosecution conducted by the learned prosecutor fails to bring on record and to the notice of the Court the relevant facts in support of the motion to examine additional witnesses, then the in-formant/complainant may bring it to the notice of the Court either by providing appropriate instruction to the learned prosecutor and in the event of his unwillingness by filing appropriate application supported by affidavit and putting forth the relevant contention for due consideration of the trial Court. Even when the prosecution or the informant/complainant or both fail in making such motion, but it comes to the notice of the trial Court that some relevant witnesses have been omitted in the list of witnesses submitted by the prosecution though there are ample circumstances available on , record necessitating their examination for a proper and truthful decision of the matter in the case, then by recording the reason thereof, i.e., by making a speaking order the trial Court can suo motu examine such witnesses. That is the amplitude/arena of jurisdiction vested in a Court under Section 311 of the Code. It is not to be circumvented or curtailed by any narrow interpretation.
13. The above position of law does not authorise either the prosecution, the informant/complainant or the Court to add to the list of witnesses as and when they like in the absence of a convincing reason to invoke the provision in Section 311 of the Code. Whether it is applied to be invoked by the prosecution, informant/complainant or the Courts suo motu, it must be supported by materials available on record to qualify to the term employed in Section 311 that "his evidence appears to it to be essential to the just decision of the case." Thus, this Court finds that contention of the learned Standing Counsel in seeking for invoking the provision in Section 311 by the trial Court is not incorrect on principle. Beyond that there is a big vacuum inasmuch as no evidence or materials available in the trial Court's record has been put forth before this Court to show or suggest that the examination of these three petitioners or any of them is necessary in the above context.
14. It is stated at the Bar that, Investigating Officer has already been examined. At the stage of examination of the Investigating Officer, if not earlier during examination of other prosecution witnesses, the prosecution should have brought out relevant evidence justifying examination of the petitioners as witnesses to the occurrence. If there is negligence or mischief by the Investigating Officer in omitting the names of the petitioners from the list of charge-sheet witnesses, then that should have been specifically put to him by the prosecution in the shape of leading questions, if permitted by the trial Court, so as to provide circumstances for consideration of the trial Court if such additional witnesses should be examined. As noted above, since nothing of that sort have been done either by the prosecution or the complainant and when there is no positive circumstance available to indicate that the three petitioners are eye-witnesses to the occurrence and willing to be examined as such, therefore, merely by filing statements of the petitioners in the shape of affidavits, they do not get the credential to be examined as additional witnesses. For the said reasons, this Court finds that the application of the petitioners was rightly rejected by the Courts below.
15. Notwithstanding the above conclusion in confirming the impugned orders, this Court observes that parties to the Sessions Trial are at liberty, if so legally advised, to ventilate their grievance at appropriate stage.
For the reasons indicated above, the application under Section 482, Cr. P. C. being found to be a second revision application in the guise is not maintainable and besides that under the given fact situation, their prayer to examine them is legally not sustainable, so the CRLMC is dismissed accordingly. Trial Court be accordingly intimated expeditiously because there was a stay order in the part-heard sessions case.