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2004 DIGILAW 430 (ORI)

Prakash Ch. Pradhan v. State of Orissa

2004-10-04

A.K.PARICHHA

body2004
JUDGMENT A. K. PARICHHA, J. — The petitioners are the accused in Sessions Trial No.372/2001 pending in the Court of C.J.M.-cum-Asst. Sessions Judge, Jagatsinghpur. After examination of the witnesses named in the complaint petition, the case was pending for examination of the I.O. At the stage, the complainant who is opp.party No.1 in the present revision filed a petition u/s. 311, Cr.P.C. to allow him to examine four other Police Officers and the local Block Development Officer as witnesses. The Trial Court after hearing the parties rejected the said prayer observing that the complainant has not assigned any reason as to how the evi¬dence of those witnesses are essential for the just decision of the case and how examination of those witnesses is likely to improve the case of the prosecution in any manner. Aggrieved by the said order, the complainant carried Criminal Revision No.43 of 2002 before the learned Addl.Sessions Judge, Jagatsinghpur. The said Court allowed that the revision, set aside the aforesaid order passed by the learned C.J.M.-cum-Assistant Sessions Judge, Jagatsinghpur and directed the trial Court to examine the police officers and Block Development Officer as witnesses for the complainant (present opp.party No.1). Not being happy the peti¬tioners have filed the present revision to set aside the order of the learned Addl.Sessions Judge, Jagatsinghpur. 2. Mr. L.D. Mishra, learned counsel for the petitioners challenges the order of the learned Addl. Sessions Judge, Jagat¬singhpur on the following grounds :- (i) The order rejecting prayer U/s 311, Cr.P.C. being interlocu¬tory in nature, revision against such order was not maintainable; (ii) The Police Officers and the B.D.O., who are sought to be examined under the scope of u/s.311, Cr.P.C. having not been named in the list of witnesses and no reason having been assigned as to how their evidence is essential for just decision of the case, there was no scope for their examination as prosecution witnesses. No one appeared for opp.party No.1, but the learned Addl. Govt. Advocate appearing for opp.party No.2-State submitted that Sec.311, Cr.P.C. gives scope for examination of any number of witnesses for proper adjudication of the case and so, the learned Addl. Sessions Judge did not commit any legal error in allowing the revision. 3. No one appeared for opp.party No.1, but the learned Addl. Govt. Advocate appearing for opp.party No.2-State submitted that Sec.311, Cr.P.C. gives scope for examination of any number of witnesses for proper adjudication of the case and so, the learned Addl. Sessions Judge did not commit any legal error in allowing the revision. 3. Section 397(2) of the Cr.P.C. clearly says that the power of revision conferred under Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. It is now to be seen whether an order rejecting the prayer made u/s.311 Cr.P.C. for examina¬tion of further witnesses is an interlocutory order. It has been held in number of cases decided by different High Courts includ¬ing this Court that the order allowing or disallowing addition¬al evidence would amount to an interlocutory order and revision there against would not lie. In Liluram Agarwal v. Sailendra Mohanty and others, reported in 60 (1985) CLT 404 it was held that an order rejecting application of a complainant to call for some documents amounts to an interlocutory order and revision against such order is not maintainable. Further in the case of Ranjan Kumar Nayak v. State of Orissa, III (1995) CCR 691, this Court held that order for summoning witnesses u/s. 311, Cr.P.C. is an interlocutory order, which cannot be interfered in a revi¬sion u/s. 397, Cr. P.C. In the present case, the prayer of opp.party No.1 for examination of some additional witnesses u/s.311, Cr.P.C. was rejected by the trial Court. Such order was interlocutory in nature. Learned Addl. Sessions Judge, Jagat¬singhpur, therefore, committed legal error in entertaining a revision petition against such order. 4. Admittedly, all the witnesses named in the complaint petition had been examined and on the date fixed for examination of the I.O. the opp.party No.1 prayed the Court to summon and examine four Police Officers and local B.D.O., who had not been named as witnesses in the complaint petition. In the said peti¬tion no reason was assigned as to how the evidence of these wit¬nesses is essential for the just decision of the case. In the said peti¬tion no reason was assigned as to how the evidence of these wit¬nesses is essential for the just decision of the case. Sec.311, Cr.P.C. says that any Court may at any stage of the enquiry, trial or other proceeding under the Code summon any person as witness or examine any person in attendance though not summoned as witnesses or recall and re-examine any person already exam¬ined, if evidence of such persons appears to be essential for the just decision of the case. When it was not indicated in the complaint petition or in the petition u/s.311, Cr.P.C. as to how the examination of the Police Officers and B.D.O. was essential for the just decision of the case, there was no scope for the trial Court to invoke the jurisdiction of Sec.311, Cr.P.C. and to allow the examination of such witnesses. Learned trial Court was, therefore, perfectly justified in rejecting the prayer of the opp.party No.1. Learned Addl. Sessions Judge, Jagatsinghpur without taking note of the above noted factors directed for examination of the above named persons as witnesses simply ob¬serving that after examination of those witnesses, it can be known whether their evidence is essential for the just decision of the case and whether the prosecution case will improve. This approach and observation is clearly contrary to the provisions of Sec.311, Cr.P.C. and the principles of natural justice. The impugned order passed by the learned Addl. Sessions Judge, Jagat¬singhpur is thus legally unsustainable and needs to be vacated. 5. In the result, therefore, the revision is allowed. The impugned order passed by the learned Addl. Sessions Judge, Jagatsinghpur is set aside and the order rejecting the prayer of opp.party No.1 passed by the learned trial Court is upheld. Revision allowed.