Orissa High Court
State Of Odisha (Vigilance) vs Manas Ranjan Mohanty And Others .... ... on 17 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 977 of 2018
State of Odisha (Vigilance) .... Petitioner
Mr. N.C. Panigrahi, Standing Counsel
-versus-
Manas Ranjan Mohanty and others .... Opposite Parties
Mr. S.S. Pradhan, Advocate
Mr. H.K. Mund, Advocate
CORAM:
THE CHIEF JUSTICE
ORDER
Order No. 17.02.2023
09. 1. The present petition by the Vigilance Department arises under certain peculiar circumstances. It transpires that during the trial of VGR Case No.5 of 2013 (T.R. No.1 of 2014) pending in the Court of learned Special Judge (Vigilance), Keonjhar, PW-3 who happened to be the Deputy Superintendent of Police of Vigilance Cell Vigilance Cell, Cuttack at the relevant point of time was deposing in the Court. He was apparently the when the events that led to the filing of the case took place.
2. In Para-3 of his deposition, it was recorded as under:
"3. The above said joint physical verification was conducted in presence of mining, revenue and forest officials and their names have been mentioned in the joint physical verification memorandum. The memorandum was prepared by me. Learned Spl. P.P. submitted since the witness has prepared the memorandum and one of the part I.O. in this case, so he may be permitted to depose after refreshing his memory from the memorandum. Learned defence counsel objected the same as there is no material that the witness has himself prepared the memorandum and he was not the I.O. at the state of inquiry.
Page 1 of 3Learned Spl. P.P. given opportunity to show from the case record if the witness has prepared the memorandum, but he failed to show any material. So in my consider view the witness cannot be permitted to depose by referring to the memorandum as nothing has been mentioned in the memorandum that the same has been prepared by this witness or as per his instruction. Learned Spl. P.P. filed a petition for time to defer the examination in chief at least for one week on the ground that some further time is necessary for preparation of the witness. Further cross-examination of P.W.1 and 2 has been deferred till cross-examination of the informant and this witness is the informant and one of the accused is UTP. Hence the examination in chief is deferred."
3. The above paragraph is self-explanatory. After the witness stated that he had prepared the 'joint physical verification memorandum' the Spl. P.P. sought permission of the trial Court that the said witness, i.e., PW-3 could refresh his memory from the said memorandum. The trial Court, however accepting the objection raised by the defence counsel declined such permission on the ground that 'there is no material' to show that PW-3 had in fact prepared the memorandum and that he was not the Investigating Officer at that stage of the inquiry.
4. Having heard learned counsel for the parties, the Court is of the view that these matters could well have been addressed at the time of arguments and even brought out at the stage of cross-examination of the witness.
5. Mr. H.K. Mund, learned counsel appearing for some of the accused persons apprehended that permitting the witness to 'refresh' his memory by looking at the document would result in the witness reading out at length from the document. The Court finds no reason for the defence to entertain such apprehension. Certainly, the trial Court which Page 2 of 3 would be in charge of the proceedings would know how to regulate the proceedings. Further, learned counsel for the defence are certainly not precluded from pointing out to the trial Court what is permissible and what is not according to them when permission is granted to the witness to 'refresh' his memory. This certainly would not envisage the witness reading out from the document at length. Above all of this, there is always the opportunity to cross-examine the witness and further to present arguments on how this evidence should be read at the appropriate stage.
6. Consequently, the Court sees no reason why permission should have been refused to PW-3 to 'refresh' his memory while referring to the joint memorandum which according to him was prepared by him.
7. Consequently, the Court now directs that the examination of PW-3 can continue from the stage at which it was before the trial Court with permission being granted to PW-3 to refresh his memory by referring to the joint physical verification memorandum.
8. Accordingly, the CRLMC is disposed of with the above direction.
9. The Superintendent of the concerned Branch is directed to immediately communicate this order to the concerned Subordinate Court.
(Dr. S. Muralidhar) Chief Justice S. Behera Page 3 of 3