Orissa High Court
Sudarsan Sahani vs State Of Odisha on 10 March, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.695 of 2016
Sudarsan Sahani .... Appellant
Mr. Asok Mohanty
Senior Advocate
-versus-
State of Odisha .... Respondent
(Vigilance)
Mr. Srimanta Das
Senior Standing Counsel
CRLA No.687 of 2016
Prasanta Kumar Patra .... Appellant
Mr. Pradipta Kumar Mohanty
Senior Advocate
-versus-
State of Odisha .... Respondent
(Vigilance)
Mr. Srimanta Das
Senior Standing Counsel(Vig.)
CRLA No.694 of 2016
Saroj Kumar Misra .... Appellant
Mr. Asok Mohanty
Senior Advocate
-versus-
State of Odisha .... Respondent
(Vigilance)
Mr. Srimanta Das
Senior Standing Counsel(Vig.)
// 2 //
GCRLA No.25 of 2019
State of Odisha .... Appellant
(Vigilance)
Mr. P.K. Pani
Standing Counsel (Vig.)
-versus-
Saroj Kumar Mishra and .... Respondents
others
Mr. Pradipta Kumar Mohanty
Senior Advocate
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 10.03.2022
34. These matters are taken up through Hybrid Arrangement (Video Conferencing/Physical Mode).
Heard Mr. Asok Mohanty, learned Senior Advocate appearing for the appellants in CRLA No.695 of 2016 and CRLA No.694 of 2016, Mr. Pradipta Kumar Mohanty, learned Senior Advocate appearing for the appellant in CRLA No.687 of 2016 and appearing for the respondents in GCRLA No. 25 of 2019, Mr. Srimanta Das, Senior Standing Counsel as well as Mr. P.K. Pani, Standing Counsel are appearing for the Vigilance Department in part.
Page 2 of 11// 3 // As per the last order dated 24.02.2022, Mr. Srimanta Das, learned Senior Standing Counsel for the Vigilance Department took time to ascertain about availability of two documents, which were referred to in the orders dated 10.02.2022 and 17.02.2022 and to file an affidavit to that effect by one of the responsible officers of the Department.
Mr. Das has filed the affidavit of one Mr. Rajib Kumar Behera, who is the holding Investigating Officer of the case. In the affidavit in paragraphs 3 and 4, it is stated as follows :
"3. That the present deponent was deputed to the office of the Executive Engineer, N.H. Division, Berhampur and Chief Construction Engineer, N.H. Circle, Berhampur to collect the required documents, which found place in letter dated 21.03.2005 under Exhibit-N.
4. That the office of Executive Engineer, N.H. Division, Berhampur vide letter No. 585 dated 28.02.2022 and the office of Chief Construction Engineer, N.H. Circle, Berhampur vide their letter No. 485, dtd. 28.02.2022 informed that required documents are not available in their respective offices. Copies of the letter No.585, dt.28.02.2020 and letter No. 485, dt. 28.02.2020 are annexed herewith as Annexure-D and E respectively."
List this matter for further hearing on 17.03.2022 in the top of the list.
( S.K. Sahoo) Judge P.T.O. Page 3 of 11 // 4 // I.A. No. 254 of 2022
35. This is an application under section 391 of Cr.P.C.
for production of representations under Annexures-A, B and C as additional evidence filed by the respondent State of Odisha (Vigilance) in CRLA No. 695 of 2016, CRLA No. 694 of 2016 and CRLA No. 687 of 2016. In paragraphs 2 to 5 of the application, it is mentioned as follows :
"2. That the appellant convict during the course of hearing before the learned trial Court produced a letter dtd.21.03.2005 obtained under the RTI Act and the same was exhibited as part of Ext.N along with copies of documents marked as enclosure to the said letter except the copy of representation of Sri Arun Kumar Choudhury which as per the appellant a non- existing document.
3. That it is humbly submitted that the aforesaid representation is found available in the records of the department/office concerned and is being produced before this Hon'ble Court. Copies of the representations dtd.02.06.2004, 02.08.2004 and 27.09.2004 are marked herewith as Annexures- A, B and C respectively.
4. That since the appellant has been relying on the plea of non-existence of the aforesaid representation in order to advance their case of innocence, it is imperative in the interest of justice and fairness to allow the aforesaid representations to be produced and considered as additional evidence.
5. That therefore unless the additional evidence so sought to be produced is allowed for just decision of the present case, the petitioner shall be put to hardship and shall be prejudiced."
In support of such submission, learned Senior Standing Counsel has placed reliance on the decisions Page 4 of 11 // 5 // of this Court in the cases of Dolagovinda Barala
-Vrs.- Republic of India, reported in (2017) 68 Orissa Criminal Reports 1122 and Purna Chandra Samal -Vrs.- State of Orissa and another reported in 2017 Criminal Law Journal 1676 and of the Supreme Court in the case of State of Gujarat -Vrs.- Mohanlal Jitamalji Porwal and another reported in AIR 1987 Supreme Court 1321.
Objection has been filed by the appellants to the interim application. In paragraphs 3 to 8, it stated as follows:
"3. That in course of hearing of the appeal, the appellant submitted that though the letter dated 21.03.2005 under Exhibit-N stated about shifting of the completion date to 30.09.2004 by acting on the representation of the contractor-Arun Kumar Choudhury, yet there exists no representation by the contractor-Arun Kumar Choudhury for such extension of time. It is further submitted that, although the letter dated 21.03.2005 said to have such representation of the contractor as enclosure, yet no such enclosure is there. Under the circumstances, this Hon'ble Court vide order dated 10.02.2022 made a query to the counsel for the respondent-Vigilance to which the learned counsel stated to obtain instruction.
4. That the respondent in pursuance to the above, has filed the present application U/s.391 Cr.P.C. praying to adduce additional evidence in the form of three purported representations of the Contractor-Arun Kumar Choudhury dtd.02.06.2004, 02.08.2004 and 27.09.2004 which are stated to be available in the records of the Department/Office concerned.
5. That, the Appellant submits that, the additional evidence sought to be produced by the respondents is merely to fill up the gaps left by the prosecution in the trial. Further, the respondent has neither stated in the petition that the said additional evidence was not in Page 5 of 11 // 6 // the possession of the prosecution at the time of trial nor has stated that the prosecution had no opportunity to produce such additional evidence before the Trial Court. Hence, the appellant submits that, the present application for additional evidence is not bonafide and filed merely to delay the hearing and will immensely prejudice the accused.
6. That the respondent in the present application has referred to and annexed one purported letter/ representation dtd.02.06.2004 of the Contractor which from a bare reading shows that, it does not relate to an application for extension of time.
Similarly, the respondent in this regard has referred to another purported letter/representation dtd.02.08.2004. The said letter is also not an extension of time application in the prescribed form. Accordingly, the contractor was intimated vide letter dtd.18.08.2004 and the Contractor-Arun Kumar Choudhury resubmitted the extension of time application on dt.10.03.2005 marked as Ext.N (page-
93). Be it mentioned here that Clause-3.5.30 of the OPWD Code (Vol.I) prescribes a specific format of application for extension of time.
The respondent has lastly referred to and annexed one more purported letter/representation dtd.27.09.2004 of the Contractor-Arun Kumar Choudhury which does not ex-facie show any representation for extension of time.
7. That, it is evident from the bare reading of the three purported representations of the Contractor referred to in and annexed to the present application that these representations do not in any manner relate to the 'representation of the contractor' referred to in the letter dtd.21.03.2005 marked as Ext.N.
8. That, the appellant humbly submits that the present application on behalf of the respondent is not bonafide and is an attempt to delay the hearing."
Let me first discuss about the ratio laid down in the aforesaid three decisions cited by the learned Page 6 of 11 // 7 // Senior Standing Counsel for the Vigilance Department.
Relying on the decisions in the cases of Zahira Habibulla H. Sheikh -Vrs. State of Gujurat reported in (2004) 28 Orissa Criminal Reports (SC) 321 and Ashok Tshering Bhutia -Vrs.- State of Sikkim reported in (2011) 48 Orissa Criminal Reports (SC) 1060, this Court in the case of Purna Chandra Samal (supra), observed as follows:
"4. Section 391 of the Cr.P.C. empowers the Appellate Court to take further evidence if it thinks necessary. The Court shall record its reasons and may either take such evidence itself, or direct it to be taken by the lower Court. Section 401 of the Cr.P.C. which deals with the powers of revision of the High Court states that the High Court may, in its discretion, inter alia, exercise any of the power conferred on a Court of appeal by section 391 of Cr.P.C. Therefore, there is no dearth of power with this Court to take additional evidence in its revisional jurisdiction.
Law is well settled that whenever the Appellate Court thinks it necessary in the interest of justice to take additional evidence in order to arrive at a just decision of the case or it feels that there would be failure of justice if the additional evidence is not taken, it has to record its reasons and either take such evidence itself or direct it to be taken by the lower Court. The Appellate Court however should not exercise such power to fill up the gaps in the prosecution case or if it feels that it would be prejudicial to the defence of the accused. If either of the parties had fair opportunity before the Court below for adducing such evidence and in spite of that they did not avail the same, no such order for adducing additional evidence shall be provided to the parties by the Appellate Court unless the requirement of justice so demands. Therefore, the discretion of the Appellate Court under section 391 of Cr.P.C. either to take further evidence itself or to direct it to be taken by the lower Court should be exercised in a judicious manner where the admission of such further evidence to the Page 7 of 11 // 8 // Appellate Court's record is considered essential for arriving at the truth of the matter. It applies not only to oral evidence but also to documentary evidence. Such power can be invoked by the Appellate Court on the prayer of either side or even suo motu. The same principle applies to the revisional Court when a party seeks for adducing the additional evidence."
In the case of Dolagovinda Barala (supra), it has been held as follows:
"Therefore, it is clear that the provisions under section 391 of Cr.P.C. are meant for sub-serving the ends of justice and can be called in aid if the appellate Court finds that recording of additional evidence is essential in order to secure the ends of justice. However, such power has to be used sparingly and only in exceptional suitable cases and the discretion of the appellate Court is not to be used to fill up the lacunas in the prosecution case or the defence case."
In the case of State of Gujarat (supra), the Hon'ble Supreme Court has observed as follows:
"5. ......The mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day. Apart from the fact that the alleged lacuna was a technical lacuna in the sense that while the opinion of the Mint Master had admittedly been placed on record it had not been formally proved the report completely supported the case of the prosecution that the gold was of the specified purity. To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The Community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offenders who Page 8 of 11 // 9 // ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest.
The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the CrPC."
Adverting to the contentions raised by the learned counsel for the respective parties, there is no dispute that all the three documents, which are sought to be introduced as additional evidence on behalf of the prosecution under section 391 of Cr.P.C. annexed to the I.A. as Annexures-A, B and C, are written by one Arun Kumar Choudhury, the first Contractor. Admittedly, the said Arun Kumar Choudhury has not been examined during trial of the case. He would have been the best person to prove those documents. There is no material before this Court whether the said Arun Kumar Choudhury is alive or not. Had the prosecution examined Arun Kumar Choudhury as a witness to prove those documents, the defence would have got the scope to cross-examine him to elicit something to strengthen the defence plea and the appellants would Page 9 of 11 // 10 // have got opportunity to have their say while answering to the questions on those documents put in the accused statements recorded under section 313 of Cr.P.C. No reason has been assigned by the learned Senior Standing Counsel for the Vigilance Department as to why the documents marked as Annexures- A, B and C could not be proved during trial. The application filed by the State-respondents is also silent as to in what way the marking of Annexures-A, B and C as exhibits on behalf of the prosecution would subserve the ends of justice. It seems that during the course of argument, when the learned counsel for the appellants pointed out certain lacunas in the prosecution case and also non-existence of some documents referred to in Ext.N, attempt has been made by the prosecuting agency to fill up such lacunas.
It is the settled position of law that the power under section 391 of Cr.P.C. is to be exercised sparingly and only in exceptional suitable cases for the ends of justice. In my humble view, neither in the application filed by the State nor during the course of argument, any convincing reasons were put forth to make such exceptional case. Therefore, I am not inclined to accept the prayer made in this application.
Page 10 of 11// 11 // Accordingly, the Interim Application being devoid of merit, stands dismissed.
Issue urgent certified copy as per Rules.
Let a free copy of this order be handed over to the learned Senior Standing Counsel for the Vigilance Department.
( S.K. Sahoo) Judge PKSahoo Page 11 of 11