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2017 DIGILAW 1183 (ORI)

Mihir Chandra Dash v. State of Orissa

2017-10-23

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. Heard Mr. Piyush Kumar Mishra, learned counsel for the petitioner and Mr. Prem Kumar Patnaik, learned Addl. Government Advocate for the State. 2. The petitioner Mihir Chandra Dash is the informant in Khandagiri P.S. Case No.188 of 1995 in which charge sheet was submitted on 26.06.1995 under sections 341, 323, 325, 509, 506 read with section 34 of the Indian Penal Code against accused persons Bapi @ Sangram Keshari Bhuyan and Gagan Bhuyan. Those accused persons were charged in the Court of learned J.M.F.C., Bhubaneswar for offences punishable under sections 341/323/325/509/506 read with section 34 of the Indian Penal Code. The learned trial Court vide judgment and order dated 22.01.2003 found the accused persons guilty under sections 323, 325 and 509 of the Indian Penal Code, however acquitted them of the charge under sections 341/506 of the Indian Penal Code and passed sentence accordingly. Both the accused preferred Criminal Appeal No. 22/2 of 2003 which is sub-judiced in the Court of learned Ist Addl. Sessions Judge, Bhubaneswar. 3. It appears that during pendency of the appeal, a petition was filed by the appellants before the Appellate Court under section 391 of Cr.P.C. and another petition under section 311 of Cr.P.C. for additional evidence and for recalling P.Ws. 4, 6 and 8 for cross-examination respectively. The petition under section 311 Cr.P.C. was not pressed. However, the learned Appellate Court considering the submissions made on behalf of the appellants, allowed the petition filed under section 391 Cr.P.C. and directed for cross-examination of P.Ws. 4, 6 and 8 vide order dated 05.11.2004 and further directed the appellants to appear before the learned trial Court on 01.12.2004. The said order dated 05.11.2004 passed by the learned 1st Addl. Sessions Judge, Bhubaneswar in Criminal Appeal No. 22/2 of 2003 has been impugned in this application under section 482 of Cr.P.C. 4. On verification of the lower Court record, it appears that after receipt of the order of the Appellate Court, summons were issued to all the three witnesses but P.W.8 only appeared before the learned trial Court and was cross-examined by the defence on 07.01.2005. The other two witnesses i.e. P.W.4 Annapurna Dash and P.W.6 Subash Chandra Sahoo did not appear for which summons were again issued by the learned trial Court. 5. The other two witnesses i.e. P.W.4 Annapurna Dash and P.W.6 Subash Chandra Sahoo did not appear for which summons were again issued by the learned trial Court. 5. It is contended by the learned counsel for the petitioner that the impugned order dated 05.11.2004 passed by the learned Appellate Court suffers from non-application of mind. It is contended that even though sufficient opportunity was afforded to the accused persons for cross-examination of P.W.4 and P.W.6, but they did not avail such opportunities and therefore, the learned Appellate Court was not justified in exercising its power under section 391 Cr.P.C. directing the learned trial Court to allow the accused persons for cross-examination of the P.Ws.4, 6 and 8. 6. Section 391 Cr.P.C. empowers the Appellate Court to take further evidence or to direct it to be taken by the Court below. Law is well settled that this power should not be exercised in cases where either the prosecution had got ample opportunity to adduce evidence but has not availed the opportunity or the accused persons had got ample opportunity for the same purpose or for cross-examining the witnesses and failed in that respect. In case of taking additional evidence, the Court must see whether the prosecution or the accused had no opportunity to produce such additional evidence before the trial Court. Additional evidence must be necessary not because it would be impossible to pronounce the judgment but because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. 7. In the present case, since P.W.8 has already been cross-examined and only one question has been put to him by way of suggestion, the learned counsel for the petitioner has no such grievance in that respect. Now it is to be seen whether the impugned order in respect of P.W.4 and P.W.6 for cross-examination is sustainable in the eye of law or not. P.W.4 Annapurna Dash was examined in chief on 8th December 1998. On that day the defence declined for cross-examination. P.W.6 was also examined in chief on 22.12.1998 and on that day the cross-examination was deferred on the petition filed by the learned defence counsel and on the next date i.e. on 12.02.1999, the cross-examination of P.W.6 was declined. A petition was filed by the accused persons for recalling P.Ws. On that day the defence declined for cross-examination. P.W.6 was also examined in chief on 22.12.1998 and on that day the cross-examination was deferred on the petition filed by the learned defence counsel and on the next date i.e. on 12.02.1999, the cross-examination of P.W.6 was declined. A petition was filed by the accused persons for recalling P.Ws. 4, 6 and 8 and vide order dated 06.04.1999, the recall petition was allowed and P.Ws. 4, 6 appeared before the learned trial Court for their cross-examination on 19.04.2000 and 01.12.1999 respectively but the defence declined to cross-examine the witnesses. Therefore, it is clear that in spite of affording sufficient opportunity to the accused persons to cross-examine P.W.4 and P.W.6, they have not availed the same. 8. In view of the background of the case and the conduct of the accused persons in not availing the opportunities provided to them, the learned Appellate Court should not have exercised its power under section 391 Cr.P.C. in a liberal manner by giving another opportunity for cross-examination of P.W.4 and P.W.6. The order suffers from non-application of mind and therefore, invoking power under section 482 Cr.P.C., the impugned order dated 05.11.2004 passed by the learned Ist Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.22/2 of 2003 stands quashed. The lower Court records be sent to the learned Appellate Court. Since the appeal is of the year 2003, the learned Appellate Court shall do well to take up the appeal at an earliest for hearing and dispose of it in accordance with law. 9. The interim order of stay dated 14.01.2005 stands vacated. It is made clear that this Court has not expressed any opinion on the merits of the appeal and the same shall be adjudicated in accordance with law. 10. Accordingly, the CRLMC application is allowed.