Orissa High Court
Nilamani Das vs Bhikari Nayak And Ors. on 5 March, 1992
Equivalent citations: 1992CRILJ2242, 1992(I)OLR562
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. This is a classic example how cases are inaptly handled by the Prosecutors and the Presiding Officers. Opposite parties faced trial for allegedly having committed offences under Section 143, 149, 426, 427, 447 and 452 of the Indian Penal Code, 1860 (In short, IPC). The learned Sub-Divisional Judicial Magistrate, Nayagarh (described hereinafter as the 'SDJM') was in seisin over the proceeding. The Associate Public Prosecutor who appeared for the prosecution, filed a memorandum on 14-7-1988 stating that there was no necessity to examine four of the witnesses named in the charge-sheet because notices had earlier been issued to them, but could not be served. On 19-9-1983 another memorandum was filed by him stating that since two of the witnesses have already stated about the overtacts of the accused persons, there was no necessity to examine any other witness. It may be indicated here that other witnesses whose presence was not desired by counsel included the investigating Officer and the informant himself. Learned SDJM directed acquittal of the accused persons, because the prosecution had failed to examine the Investigating Officer and the informant, because according to him they were the important witnesses for the prosecution.
2. The Presiding Officer is not to act as a silent spectator, and mechanically record what is stated by the witnesses in Court. The Presiding Officer has a duty to see that justice is done. In this context it is necessary to refer to Section 165 of the Indian Evidence 1872 (in short, the 'Evidence Act') and Section 311 of the Code of Criminal Procedure, 1973 (in short the 'Code'). The provisions are complimentary to each other. Section 311 of the Code confers very wide powers upon a Court in the matter of summoning witnesses. The section consists of two parts (1) giving a discretion to the Court to examine a witness at any stage and (2). the mandatory portion which compels a Court to examine a witness if his evidence appears essential to the just decision of the case. The object of the section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper adjudication. The Court may exercise power under Section 311 in any of the following three ways :
(i) summon any person as witness,
(ii) examine as witness, any person present in Court though not summoned and,
(iii) re-call and re-examine a witness who has already been examined. (See v. Jamatraj v. State of Maharashtra AIR 1968 SC 178).
The mandatory part obligates the Court to act in any of the aforestated three ways when the evidence of any person appears to the Court "to be essential to the just decision of the case." The test of "just decision" is not limited to something necessary in the interest of the accused only. It may equally benefit the prosecution. If the conditions of Section 311 are satisfied, the Court can call a witness not only on the motion of either the prosecution or the defence, but on its own motion.
3. As indicated above, very wide powers are conferred under the section. But wider the power, the greater is the need for restraint while exercising the discretion. The power should be exercised to prevent miscarriage of justice owing to some witness not having been called.
4. In the case at hand, the very fact that the prosecution was declining to examine the Investigating Officer and the informant, and large number of witnesses should have rang a warning bell in the mind of the Presiding Officer. The evidence of the Investigating Officer and the informant was considered material by the learned SDJM as evident from his conclusion that the prosecution version was rendered fallible due to non-examination of these two witnesses. The Court has a duty to see that due to inapt handling of the Prosecutor, a guilty person does not go punished, or an innocent gets punished. It is strange that counsel for State declined to examine as many as six witnesses including the Investigating Officer and the informant, merely because two other witnesses had stated something about the alleged acts of the accused persons. The manner in which prosecution was conducted leaves a bad taste in the mouth. The prosecutors who have a vital role to assist the Court, many times fail in their duties. There cannot be a better example than the case at hand.
5. A plea regarding non-maintainability of the revision at the behest of informant was raised. The informant has no doubt a very limited scope of participation in the trial and that too with the permission of the Court. But a revision challenging acquittal at his behest is maintainable. The present revision application is by the informant who has highlighted the deficient manner in which prosecution has been conducted.
6. In the above premises, I have no hesitation in setting aside the impugned judgment of acquittal passed by learned SDJM, Nayagarh. It shall not be construed that I have expressed any opinion about the merits of the case. I have interfered because of the fatuous manner in which the proceeding has been conducted by the prosecutor, and inapposite handling of the case by learned SDJM.
The Criminal Revision is allowed.
7. Copies of this order may be communicated to the Secretary. Home Department Government of Orissa and the Director of Public Prosecution.