Orissa High Court
Gokulananda Mohapatra vs State Of Orissa on 9 March, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
SUO MOTU CRREV NO.74 of 1997
From the judgment and order dated 22.03.1996 passed by the
learned Sub-Divisional Judicial Magistrate, Balliguda in G.R. Case
No.271 of 1988 (T.R. No.907 of 1992).
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Gokulananda Mohapatra ......... Petitioner
-Versus-
State of Orissa ......... Opp. party
For Petitioner: - Mr. Ramakanta Kar
For Opp. party: - Mr. Deepak Kumar Pani
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 09.03.2017
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S. K. Sahoo, J.This suo motu criminal revision proceeding has been initiated on the basis of the letter dated 20.05.1996 of the learned District Judge, Phulbani addressed to the Registrar (Administration) of this Court wherein it was pointed out during his sessions circuit at Baliguda in the month of April 1996, certain irregularities were found in the impugned judgment and order dated 22.03.1996 passed by the learned S.D.J.M., 2 Balliguda in G.R. Case No.271 of 1988 (T.R. No.907 of 1992) in which the opposite party faced trial for offences punishable under sections 409/477-A of the Indian Penal Code for committing criminal breach of trust by misappropriating the controlled commodities i.e. rice, wheat and sugar worth of Rs.3,85,919.53 paisa by falsifying the account in the concerned registers and files and he was acquitted of all the charges.
2. The first information report was lodged by the Secretary, R.C.M.S., Raikia vide letter no.714 dated 02.11.1988 (Ext.4) before the officer in charge, Balliguda Police Station wherein it is indicated that the opposite party was appointed to act as a salesman in the Raikia R.C.M.S. Ltd. as per order no.278 dated 01.12.1984 of the secretary, Raikia R.C.M.S. Ltd. The opposite party was transferred vide office letter no.67 dated 27.07.1987 to act as Branch in-charge of Balliguda Branch and accordingly, he took over the charge of the said Branch. The opposite party continued as such till 06.10.1988 when he applied for leave from 07.10.1988 to 10.10.1988 by sending an application by post. On expiry of the leave period, the opposite party did not resume his duty and he was recalled to join his duty after refusal of extension of leave further. Suspecting shortage of Government stock in the storage godowns, the 3 Executive Magistrate as per wireless message dated 11.10.1988 of the Collector, Phulbani sealed the godown. When the petitioner did not resume his duty till 29.10.1988, on the requisition to the Sub-Divisional Officer (Civil), Balliguda, the godowns at Balliguda, Kutikia, Khomankhole and Sindrigaon were broke open in presence of the Executive Magistrate on 29.10.1988. During verification of the godowns, it was found that there was shortage of the controlled rice of Q.877.60.640 worth of Rs.3,37,878.46, wheat of Q.97.01.500 worth of Rs.32,791,07 and sugar of Q.25 worth of Rs.15,250.00 and total value of controlled commodities found shortage came to Rs.3,85,919.53. It is further stated in the first information report that the opposite party while discharging his duty as the Branch in-charge, received Government stock from F.C.I., Phulbani for issuing the same to the retailers as per the orders of the Supply Authorities but with malafide intention, he suppressed the facts of entry of the stocks in the books of account received from F.C.I., Phulbani and caused deficit to the stocks. The godownwise verification reports conducted by the Civil Supplies Authorities were filed along with the first information report.
3. On the basis of such first information report, Balliguda P.S. Case No.80 of 1988 was registered on 03.11.1988 4 under section 409 of the Indian Penal Code by the officer in charge, Balliguda Police Station who himself took up the investigation of the case.
During course of investigation, the Investigating Officer examined the informant, visited Raikia godown, Balliguda, arrested the opposite party on 04.05.1989 and forwarded him to the Court. The case was taken over for investigation by the Inspector, CID, CB, Orissa, Cuttack on 10.01.1991 who examined some of the material witnesses and after completion of investigation, charge sheet was submitted on 24.06.1992 under sections 409 and 477-A of the Indian Penal Code against the opposite party.
4. During course of trial, in order to prove its case, the prosecution examined twelve witnesses.
P.W.1 Khageswar Pradhan was the accountant of R.C.M.S. Ltd., Raikia and he stated about the seizure of the log books of vehicle nos. ORL 1211 and ORL 746 as per the seizure list Ext.1.
P.W.2 Jayaram Sahu was the driver of R.C.M.S. Ltd., Raikia and he also stated about the seizure of log books on 12.05.1992 under seizure list Ext.1.
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P.W.3 A. Baikunthanath Patra was the Head Clerk in the office of the C.S.O., Phulbani and he stated that on 11.01.1991 police seized certain documents and audit report in his presence on production by the accounts supervisor and dealing assistant under seizure list Ext.2 and he further stated that on 27.09.1991 police again seized certain documents in his presence under seizure list Ext.3.
P.W.4 Rabindranath Acharya was the Senior Accounts Supervisor in the office of the C.S.O., Phulbani and he stated that on 11.01.1991 he produced certain documents and audit report which were seized under seizure list Ext.2. He further stated that certain documents were further seized on 27.09.1991 by the police under seizure list Ext.3.
P.W.5 Md. Khalid was the Supply Supervisor, Baliguda and he stated that in the year 1988 the opposite party was working as godown in charge of Baliguda and at that time it was detected during surprise visit that the opposite party although received stock beyond the allotment from the godown but he did not make entry in the stock register and misappropriated the excess stock received from the godown for his personal use.
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P.W.6 Pravakar Naik was the Secretary, Raikia R.C.M.S. Ltd. and he stated that the opposite party was the godown in charge who proceeded on leave keeping the accountant Niranjan Prusty of the R.C.M.S. as in charge of his duty.
P.W.7 Niranjan Prusty was the Accountant in R.C.M.S. Ltd., Raikia and he stated that as per the decision of the Board of Management on 31.10.1988, he lodged the first information report under Ext.4.
P.W.8 Budhiram Gouda was the driver of R.C.M.S., Raikia and he stated that during the year 1987-88, the opposite party was the store in charge, Baliguda and at that time the store agent took the business of rice, wheat and sugar and he used to bring articles from F.C.I., Phulbani to Balliguda Depot. He proved the log book of the vehicle ORL 746 under Ext.5 and the endorsement made by the opposite party as per Exts.5/1 to 5/7 in token of receipt of the stock in the log book.
P.W.9 Harihar Pala is an independent witness who stated that he was the owner of the truck bearing registration no.ORG 2467 and one Trinath Rath was the driver of the truck in the year 1988.
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P.W.10 Prafulla Chandra Patnaik was the A.C.S.O., Balliguda and he stated that the opposite party was the depot in charge of Balliguda storage Depot where rice, sugar and wheat were stored. He further stated he made the verification of the stock position on 23.04.1988 and 04.06.1988 but did not notice any discrepancy. He further stated that since no physical verification was made due to want of stock and tally register for the month of August and September 1988, he reported the matter to C.S.O., Phulbani who directed for magisterial verification of the stock position and during magisterial verification, certain discrepancies were noticed in the stock position at Balliguda.
P.W.11 Sarat Chandra Das was the Marketing Inspector, Balliguda who stated that during the year 1987-88, the opposite party was the godown in charge at Balliguda Depot and on 11.10.1988 he was present at the time of magisterial verification and he came to know from the audit report that there was shortage of 877 quintals of rice, 97 quintals of wheat and 25 quintals of sugar.
P.W.12 Fakir Chandra Sahu was the Marketing Inspector, F.C.I., Phulbani in the year 1987-88 and he stated that from the F.C.I. godown of Phulbani, rice, sugar and wheat 8 were supplied to different places of the districts and further stated that before the truck leaves the premises of the godown after the properties are loaded, after verification of gate pass, he used to prepare acceptance notes. He proved the acceptance notes vide Ext.7, and Ext.7/1 to Ext.7/13 on different dates.
The prosecution exhibited seven documents. Exts.1, 2 and 3 are the seizure lists, Ext.4 is the F.I.R., Ext.5 is the log book of ORL 746, Ext.6 is the stock register and Ext.7 to Ext.7/13 are the acceptance notes.
5. The defence plea of the petitioner was one of denial and it was pleaded that he has been falsely entangled in the crime. No witness was examined on behalf of the defence.
6. The learned Trial Court on assessment of the evidence on record came to hold that from the evidence of the witnesses, it clearly appears that the controlled rice, wheat and sugar alleged to have been misappropriated by the opposite party was never entrusted to the opposite party and there is absolutely no evidence excepting Exts.5/1 to 5/7 available on record to show that rice, wheat and sugar were delivered to the opposite party. The learned Trial Court further held that the P.W.8 has specifically stated that there is no mention in Ext.5/1 to Ext.5/7 that the opposite party received the stock of rice, 9 wheat and sugar from P.W.8. The learned Trial Court further held that though the P.W.11 has specifically stated that from the audit report, he could know that there was shortage of 877 Qtls. of rice, 97 Qtls. of wheat and 25 Qtls. of sugar from the stock, the audit report has not been filed in the case nor has been proved. The learned Trial Court further held that from the evidence, it is clear that the question of entrustment of rice, wheat and sugar alleged to have been misappropriated by the opposite party has not been proved at all. It was further held that the prosecution has not taken any steps to prove that the opp. party was appointed as store in charge or a salesman under Raikia R.C.M.S. and the appointment order of the opposite party was not proved. It was further held that the prosecution has neither proved the factum of entrustment of rice, wheat and sugar alleged to have been misappropriated by the opposite party and that the opposite party in the capacity of a public servant misappropriated such rice, wheat and sugar for his personal use and accordingly acquitted the opposite party of the charge under section 409 of the Indian Penal Code. The learned Trial Court further held that no record has been placed before the Court that the opposite party made any false entry or subsequently altered the entry. No register or document to that 10 effect has been produced before the Court to arrive at a conclusion that the opposite party committed the offence under section 477-A of the Indian Penal Code. The learned Trial Court further held that the Investigating Officer, who conducted the investigation, did not appear to give evidence nor was even his whereabouts also made available to the Court. It was further held that the auditor, who prepared the audit report, on the basis of which the discrepancies were noticed by the department, has not been examined and the audit report has not been proved. It was further held that the appointment of the opposite party as a public servant has not been established. It was further held that although the witnesses have stated that verification was made in presence of the Magistrate but no such Magistrate has been examined. The learned Trial Court further held that the Inspector Nigamananda Tripathy and Mrutyunjay Sahu, the then officer in charge, Balliguda Police Station did not appear to give evidence in the case for which the prosecution case suffered a lot. Accordingly, the learned Trial Court held that the prosecution has failed to prove its case against the opposite party under sections 409 and 477-A of the Indian Penal Code and the opposite party was held not guilty of the said offences and was acquitted under section 248(1) of Cr.P.C.
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7. The learned District Judge, Phulbani in his letter dated 20.05.1996 addressed to the Registrar (Administration) of this Court pointed out the following irregularities:-
(i) Auditor Dinabandhu Panda, A.C.S.O., Sridhar Das and I.O. Mrutyunjaya Sahu, Ex-
O.I.C. Balliguda and Nigamananda Tripathy, Inspector, C.I.D. (Crime Branch), Cuttack who were the material witnesses to prove the offences against the opp.party have not been examined in the case;
(ii) When the addresses of some of the witnesses such as the Auditor, A.C.S.O and the Investigating Officer were available with the Court, the S.D.J.M. should have sent summons to the Head of the office under whom the witnesses were working to procure their attendance in Court within the scope of section 66 of the Cr.P.C.;
(iii) The case of the prosecution was closed on 19.03.1996 by rejecting the prayer of the Public Prosecutor dated 16.03.1996 for issuance of non-bailable warrant of arrest against the remaining witnesses.;
(iv) The learned S.D.J.M. has not utilised his power under section 242 (2) Cr.P.C.;
(v) The learned S.D.J.M. failed to exercise jurisdiction conferred on him under section 311 12 of the Cr.P.C. and non-invoking of such jurisdiction led to miscarriage of justice;
(vi) The charge framed within the scope of section 211 Cr.P.C. is not available on record though order sheet dated 12.03.1993 reflects that charges were framed on that day.
8. Mr. Deepak Kumar Pani, learned Addl. Standing Counsel appearing for the State submitted that the order of acquittal is based on non-examination of material witnesses and non-proving of the material documents and no concrete steps have been taken by the learned Trial Court in that regard for the production of the witnesses and documents and the Court has acted as a mere passive spectator even though the amount of misappropriation of Govt. fund was huge. Learned counsel for the State further contended that it is a fit case where the order of acquittal should be set aside and the matter be remanded to the learned Trial Court for examination of the material witnesses those have been left out and for pronouncement of a fresh judgment in accordance with law.
Mr. Ramakanta Kar, learned counsel appearing for the opp. party on the other hand supported the impugned judgment and contended that the judgment itself indicates that the A.I.G.(S) of Police, Orissa, Cuttack was moved so also the 13 Supply Department was moved by registered post to direct the witnesses to appear and to give evidence and in spite of that no useful purpose could be served. Learned counsel further submitted that the case was initiated in the year 1988 and charge was framed on 12.03.1993 and thereafter the case suffered number of adjournments from time to time and the prosecution examined twelve witnesses out of the seventeen witnesses mentioned in the charge sheet. Learned counsel further submitted that on 16.03.1996, the learned Trial Court observed that since 26.11.1995 the prosecuting agency, the concerned departments of Government, the A.I.G. (S) of Police, Orissa, Cuttack are not taking any effective steps for the attendance of the witnesses in spite of the request to different authorities and departments under which the witnesses including the I.O. are working. Learned counsel further held that the Court vide order dated 16.03.1996 held that the learned Public Prosecutor, Phulbani filed another petition that the witnesses who have not been examined are material witnesses and they are not responding in spite of summons issued by the Court and therefore prayed for issuance of non-bailable warrant of arrest against the witnesses but the Court found there was nothing on record that summons have been duly served on the prosecution 14 witnesses as no acknowledgement or service return has been received back. The Court further held that the present whereabouts and present place of posting of the official witnesses were not made available to the Court and since the learned Public Prosecutor, Phulbani was unable to furnish the same to the Court for taking action against the defaulting witnesses, the Court thought it proper not to issue non-bailable warrant of arrest against the witnesses in absence of proof of service of summons. Learned Trial Court gave time to the learned Public Prosecutor to furnish the present place of posting of the chargesheet witnesses those who had not been examined indicating the official designation of the controlling officers of the witnesses by 19.03.1996 in order to enable the Court to take further action in the matter and it was further indicated that if the address of such witnesses and designation of controlling officers are not furnished, the prosecution case would be closed. Learned counsel for the opp. party contended that on 19.03.1996 the prosecution did not take any steps as per the order dated 16.03.1996. The learned Trial Court further held on 19.03.1996 that the concerned departments of Government, A.I.G. (S) of Police, Cuttack, Orissa were moved by several registered letters to direct the witnesses to appear in the Court 15 to give their evidence and accordingly, the petition filed by the learned Public Prosecutor dated 16.03.1996 for issuance of non- bailable warrant of arrest against the witnesses was rejected and the case was closed. It is further contended by the learned counsel for the petitioner that in the meantime about twenty one years have passed since the order of acquittal and the acquittal order is not based only upon the non-examination of some witnesses but on the finding that the ingredients of the offences under sections 409/477-A of the Indian Penal Code are not satisfied from the available materials and therefore, it would not be proper to remand the matter to the Trial Court for examination of the rest of the witnesses after setting aside the order of acquittal in the event of which the opposite party will be seriously prejudiced for no fault of his.
9. Law is well settled that if the High Court is satisfied in any case that in the interest of justice, the order of acquittal passed by the Court below needs to be revised, even without any challenge to such order by the State or the victim, the High Court can exercise suo motu power of revision under section 401 read with section 397 of Cr.P.C. to interfere with the same but such power has to be exercised with extreme care and caution where there has been flagrant miscarriage of justice. Unless the 16 High Court is of the view that the judgment and order of acquittal of the Court below is so perverse or contrary to the record that to uphold the same would amount to travesty of justice and would mean that the proved guilty person has been wrongly acquitted, the exercise of suo motu power of revision is not called for.
10. Coming to the case in hand, it appears that after the charge was framed against the opposite party on 12.03.1993, the case has suffered twenty six adjournments before the prosecution case was closed on 19.03.1996 and in the meantime, out of 17 charge sheet witnesses, the prosecution has examined 12 witnesses. The five witnesses those who have not been examined by the prosecution are one Sridhar Das, A.C.S.O., Balliguda, Dinabandhu Panda, Auditor, C.S.O. Office, Phulbani, Nabin Chandra Nayak and two Investigating Officers i.e. Mrutyunjaya Sahoo and Nigamananda Tripathy.
The evidence of the witnesses who have been examined by the prosecution during trial has been assessed by the learned Trial Court and it was held as follows:-
(i) P.W. 1 is not able to say as to for what for the log book was seized nor he could say the detail particulars of the log book seized;17
(ii) P.W.2 has stated that after the seizure was made, subsequently he gave his signature but he was not able to say why the log book was seized.
(iii) P.W.3 has stated that he had no personal knowledge relating to the contents of the documents seized by the police under seizure list Exts. 2 & 3.
(iv) P.W.4 has stated that he has no personal knowledge about the contents of the documents seized by the police.
(v) P.W.5 has stated that he did not remember exactly on what point and why he was examined by the police and he further stated that he had no personal knowledge about the actual facts of the case.
(vi) P.W.6 has stated that he had no knowledge about the case against the opp. party.
(vii) P.W.7 has stated that he has no direct knowledge as to when the rice, wheat and sugar, found shortage in the store were entrusted to the opp. party.
(viii) P.W.8 has stated that all the entries in Ext.5 have been made by him and in Exts. 5/1 to 5/7, there is no mention that the opposite party received the stock. He has 18 further stated that the entries made in Ext. 5 have not been checked or verified by any of the superior officers.
(ix) P.W.9 who was the owner of the truck ORG 2647 stated that one Trinath Rout was the driver of the truck in the year 1988.
(x) P.W.10 has stated that he made verification on 23.04.1988 and 04.06.1988 but did not notice any discrepancy in the stock position. He further stated that he cannot say the exact discrepancy which was detected at the time of magisterial verification. He further stated that he is unable to say the exact stock position at the time of magisterial verification and the stock position which should have been there at the time of magisterial verification. He further stated that he has no personal knowledge regarding the entrustment of rice, sugar and wheat to the accused in the depot.
(xi) P.W.11 was not able to say when and by whom Ext. 6 was seized and he stated that during earlier verification of the stock position, he did not notice any discrepancy in the stock position in the depot. He further stated that he had no personal knowledge regarding entrustment of wheat, rice and sugar to the opposite party in the depot.
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(xii) P.W.12 has stated that Ext.7 to Ext.7/13, the acceptance notes do not indicate if rice, sugar and wheat, issued from the F.C.I., Phulbani by him, were delivered to the opp. party.
After analyzing the evidence of all the twelve witnesses, the learned Trial Court held that there is no evidence that the controlled rice, wheat and sugar alleged to have been misappropriated by the opp. party was ever entrusted to the opp. party or it was delivered to him. It was further held that from Exts. 5/1 to 5/7, it does not appear that the opp. party received the stock of rice, wheat and sugar from P.W.8. The learned Trial Court has further held that the prosecution has not taken any steps to prove the letter of the appointment of the opp. party as store in-charge or sales man under Raikia R.C.M.S. and accordingly held that the prosecution has failed to establish the charge under section 409 of the Indian Penal Code against the opposite party. Similarly while acquitting the opposite party under section 477-A of the Indian Penal Code, the learned Trial Court found that no record was placed to show that the opp. party made any false entry or subsequently altered the entry. In addition to such findings, the learned Trial Court held that the Investigating Officers, the Auditor, the Magistrate in whose 20 presence the verification was made have not been examined and the audit report has not been proved by the prosecution.
11. Chapter XIX of Cr.P.C. which deals with trial of warrant cases by the Magistrate indicates in sub section (2) of section 242 that the Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
Law is well settled that under sub-section (2) of section 242 of Cr.P.C., the prosecution has a right to request the Magistrate to summon witnesses and if its request to summon the witnesses has been allowed, it is the duty of the Magistrate to scrutinize the cause of non-service of summons on the witnesses summoned and without so scrutinizing, he should not proceed to decide the case. If the prosecution fails to produce the witnesses or in spite of due service of summons, the witnesses do not appear in Court, the Court should not dispense with the evidence of such witnesses or go on showing indulgence and adjourning the case for a longer period. Once the Court issues process against the witnesses, it is the bounden duty of the Court to enforce their attendance and use all coercive methods to secure their presence and therefore, closure of the prosecution evidence due to non-appearance of the witnesses 21 without taking any suitable measures/steps in that respect would be improper. The Magistrate cannot act in an arbitrary manner and it is the duty of the Magistrate to see whether in compliance of the order passed by the Court, summons have been issued to the witnesses or not and it is also the duty to see whether the said summons have been actually sent to the witnesses or not and if the summons have been sent to the witnesses, then whether the said summons have been served on the witnesses or not and if the witnesses failed to appear even after due service of summons then the Court can take resort to the provision under section 87 of the Cr.P.C. and the Magistrate cannot throw away his responsibility and acquit the accused for want of evidence.
12. In the present case, five witnesses who have not been examined before the Trial Court as per the charge sheet are all official witnesses and the order sheet of the Court indicates that several steps have been taken to ensure their attendance and registered letters have been sent to the concerned departments of the Government and A.I.G.(S) of Police, Orissa, Cuttack to procure the attendance of the witnesses. The order dated 20.12.1995 indicates that since the present whereabouts of the witnesses was not known, the 22 Registrar, Co-operative Societies, Orissa, Bhubaneswar, Director of Civil Supplies, Orissa, Bhubaneswar and A.I.G of Police (S), Orissa were requested by the Court to direct the remaining charge sheet witnesses to appear on 11.01.1996 and 12.01.1996 in two batches. The order sheet dated 12.01.1996 indicates that in spite of letters addressed to the Director of Civil Supplies, Orissa, Bhubaneswar and A.I.G. (S) of Police, Orissa, Cuttack under letters No.3110 dated 21.12.1995 and No.3106 dated 21.12.1996 respectively, the witnesses named therein did not attend the Court. The copies of the letters were also endorsed to D.P.P., Orissa, Bhubaneswar and the Public Prosecutor, Phulbani. It was ordered by the Court to write separate letters to Director, Civil Supplies, Orissa, Bhubaneswar and A.I.G. (S) of Police, Orissa, Cuttack to direct the witnesses, the summons of which were sent to them to appear before the Court. It is mentioned in the order dated 30.01.1996 that Inspector Mrutunjaya Sahu was directed by S.P., Kandhamal, through S.P., Jagatsinghpur to attend the Court on 30.01.1996 to give evidence but he did not attend in spite of wireless message and registered letter No.113 dated 17.01.1996 to the A.I.G. of Police (S), Orissa, Cuttack and no reply was received from D.P.P., Bhubaneswar, C.J.M., Phulbani and Public Prosecutor, Phulbani. In the order dated 23 22.02.1996, the learned Trial Court has been pleased to observe that it is most unfortunate that although several correspondence have been made with the Government for procuring the attendance of the witnesses, still then, for the reasons best known to the prosecuting agency, the witnesses did not attend the Court nor any reply was received from the Deputy Secretary, Supply Department. On 23.02.1996 the learned Trial Court has been pleased to observe that due to non-cooperation of different departments of the Government and prosecuting agency, the case was lingering unnecessarily without any progress. The Court while adjourning the matter to 16.03.1996 and 19.03.1996, indicated that if the prosecution fails to produce the witnesses on those dates, the prosecution case would be closed. On 16.03.1996 when the Public Prosecutor filed a petition for issuance of non-bailable warrant of arrest against the witnesses who have not been examined, the learned Trial Court directed the Public Prosecutor to furnish the present place of posting of the charge sheet witnesses who have not been examined indicating the official designation of the controlling officers of the witnesses so as to take further action in the matter. On 19.03.1996, the prosecution did not take any step and therefore, in view of the orders dated 24.11.1995, 19.12.1995, 24 12.01.1996, 30.01.1996, 22.02.1996, 23.02.1996, 15.03.1996 and 16.03.1996, the learned Trial Court found no justification to allow any further time to the prosecution. The learned Magistrate rejected the prayer for issuance of N.B.W. of arrest against the witnesses as there was no proof of service of summons on the witnesses.
13. A speedy and fair trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution of India. It protects the accused against pre-trial harassment, saves the accused from anxiety and public suspicion due to unresolved criminal charges and protects the risk of evidence being lost and memories of the witnesses being dimmed by passage of time and the witnesses losing interest in the case. One of the main reasons for delayed trial is the delay in service of summons on the witnesses and sometimes summons remains unserved for months together. There is shortage of staff in the lower Courts for service of summons. The response of different Government Departments to the summons issued by the Trial Court for attendance of the official witnesses working in such departments is very poor which compel the Court to adjourn the cases on the ground of non-availability of witnesses and sometimes to close the prosecution case. When cases in 25 different Courts are on the rise, absence of appropriate infrastructure, presiding officers and manpower will further worsen the situation. Without the active and timely participation of the prosecuting agency, the accused and effective measures being taken by the Court, the concept of 'speedy trial' would remain a distant dream.
In the case in hand, it appears that the learned Trial Court has done his best in securing the attendance of the witnesses during trial but it is due to the non-cooperation of different Government agencies, the trial suffered several adjournments. Moreover, I am of the view that the examination of the five official witnesses would not have made much difference to the result of the case inasmuch as the order of acquittal is not based only on the non-examination of such witnesses but on sound reasons after proper appreciation of the evidence. It would not be proper at this stage after 21 years to set aside the order of acquittal and remand the case again to the learned S.D.J.M., Balliguda for examination of the official witnesses and nobody knows whether those witnesses are alive or dead and how much more time would be consumed in that process for the examination of such witnesses and delivering a fresh judgment.
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After analyzing the ocular evidence on record and the documents proved by the prosecution, I am of the view that the impugned order of the Trial Court is not perverse or illegal or contrary to the evidence on record and it cannot be said that the opp. party has been wrongly acquitted or there is flagrant miscarriage of justice. Therefore, I am not inclined to exercise the suo motu power of revision to interfere with the impugned judgment and order of acquittal.
In the result, the suo motu criminal revision stands dismissed.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 9th March, 2017/Sukanta/Kabita