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2009 DIGILAW 372 (ORI)

Pradeep Satapathy v. State of Orissa

2009-04-30

PRADIP MOHANTY

body2009
JUDGMENT PRADIP MOHANTY, J. — This criminal revision is directed against the order dated 18.07.2006 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. Case No.1792 of 2005 refusing to summon witnesses and directing the petitioner to produce all his witnesses on the date fixed. 2. The brief facts of the case are that the petitioner is the accused and opposite party No.2 is the complainant in I.C.C. Case No.1792 of 2005 pending in the Court of learned S.D.J.M., Bhubaneswar. The accused-petitioner appeared and the trial of the case was commenced. After examination of the complainant (P.W.1), two applications were filed on behalf of the petitioner on 18.07.2006, one for permitting the accused-petitioner to be a witness and the other petition was for summoning some official witnesses. After hearing the parties, the learned Magistrate by order dated 18.07.2006 allowed the prayer of the petitioner to examine himself as a defence witness, but rejected his second prayer for summoning the official witnesses. Instead, he directed the accused petitioner to produce all his defence witnesses. 3. Mr. Nayak, learned counsel for the petitioner, submits that the order of the learned S.D.J.M. refusing to issue summons to the official witnesses is illegal, arbitrary and not sustain¬able in law. He also submitted that the trial Court was satisfied that the evidence of those witnesses is essential for proper adjudication of the case, but, at the same time, instead of issu¬ing summons for their examinations on behalf of the defence, directed the petitioner to produce the defence witnesses knowing very well that those witnesses cannot be produced by the accused-petitioner as they are officials of I.T. Department and Judicial Department. He further submitted that the petitioner is willing to bear the cost of those witnesses for their examination. 4. Mr. Roy, learned counsel appearing for Opposite Party No.2 vehemently contended that the present accused-petitioner filed a petition under Sections 91 and 254 (2) Cr.P.C. to call for certain documents on 06.12.2005. After hearing the parties, the trial Court vide order dated 16.01.2006 rejected the petition on the following grounds : On 27.10.2005, a petition was filed by the accused-petitioner praying to recall the complainant for further cross-examination stating that such further cross-examination was required to elicit certain material facts from the complainant, such as, his source of income and surplus savings, whether the complainant had complied with Section 269 S.S. of Income Tax Act, etc. The said petition was filed after closure of the evidence from the side of the complainant. The trial Court on 27.10.2005 allowed the said petition and recalled the complainant for fur¬ther cross-examination. But after seeking for four adjournments, a petition was filed to call for certain documents, which proves that the accused-petitioner, in order to delay the proceedings, had adopted such dilatory tactics. Besides, the complaint case is pertaining to an offence under Section 138 of N.I. Act. Admitted¬ly, there is a separate forum to deal with the Income Tax matter and it is not required to adjudicate the same in a case under Section 138 of N.I. Act. Against that order, the petitioner preferred a writ Applica¬tion registered as W.P.(C) No.4079/2006. On 29.06.2006, the Division Bench of this Court dismissed the Writ Application and confirmed the order dated 16.01.2006. Mr. Roy also submitted that the present criminal revision has been filed agitating the same grievance inasmuch as the order impugned herein relates to rejec¬tion of the petition filed on behalf of the petitioner under Sec¬tion 254(2) of Cr.P.C to call for witnesses like the Commissioner of Income Tax and another. Therefore, the trial Court has rightly rejected the same. He also submitted that in order to linger the matter, this revision has been filed. Moreover, this revision arises out of an interlocutory order, and hence it is not main¬tainable. 5. Perused the record of the present revision and the records of Criminal Misc. Case No.186/2006 and W.P.(C) No.4079/2006. On perusal of the records, it reveals that similar petitions were filed before the trial Court on earlier occasions and were rejected. Challenging the said orders the petitioner had approached this Court in Criminal Misc. Case No.186/2006 and W.P.(C) No.4079/2006 and this Court disposed of the same by confirming the orders of the trial Court. Moreover, by the im¬pugned order the trial Court has allowed the petitioner to pro¬duce defence witnesses. Thus, sufficient opportunity has been given to the accused to defend and present his case. That apart, it is an interlocutory order and therefore, this Court is not inclined to interfere in exercise of its powers under Section 401 Cr.P.C. Hence, the Criminal Revision is dismissed. This Court directs the trial Court to complete the trial as expeditiously as possible, preferably within four months from date of receipt of this order. Revision dismissed.