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2017 DIGILAW 1226 (ORI)

Laxmidhar Satapathy v. State of Odisha

2017-10-30

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. 1. The appellant Laxmidhar Satapathy has challenged the impugned order dated 12.09.2017 passed by the learned Authorized Officer, Special Court, Cuttack in Confiscation Case No.15 of 2014 in directing the appellant to deposit tentatively the salary for one day of the defence witnesses as per list for issuance of summons to them through Court process. 2. The appellant was the Ex-Executive Engineer, Electricals, Jagatsinghpur and Ex-Manager, CESU, Head Office at Bhubaneswar and he is now a retired person staying at Chandrasekharpur, Bhubaneswar. 3. As it appears, the appellant is facing trial before the learned Special Judge, Special Court, Cuttack in T.R. Case No.27 of 2013. Confiscation Case No. 15 of 2014 was instituted against the appellant, his wife Smt. Supratima Satpathy and son Tusarkanta Satpathy before the Authorized Officer, Special Court, Cuttack at the instance of State of Odisha. It further appears that after closure of the evidence from the side of the State of Odisha, the appellant examined his wife Smt. Supratima Satpathy as D.W.1 and thereafter, he filed a petition for summoning some defence witnesses through Court as per schedule and those witnesses are Sl. nos. 4 to 15 as they are the Govt. Servants/official witnesses. The learned Authorized Officer, Special Court, Cuttack directed the appellant to deposit the salary for one day of the concerned witnesses for issuance of summons through Court process and fixed the date to 15.09.2017 for depositing the salary of the witnesses and requisites for issuance of summons. 4. Mr. Jugala Kishore Panda, learned counsel appearing for the appellant contended that the impugned order suffers from non-application of mind and the learned Authorized Officer has committed gross illegality in directing the appellant to deposit one day salary of the defence witnesses who are mentioned in Sl. nos. 4 to 15 of the petition as the same is not permissible in view of the provisions under Orissa Criminal Court Witnesses (Payment of Expenses) Rules, 2012 (hereafter ‘2012 Rules’). 5. Mr. Sanjaya Kumar Das, learned Standing counsel appearing for the Vigilance Department on the other hand supported the impugned order and contended that when the appellant has filed a long list of witnesses, out of which witnesses nos. 4 to 15 are the public servants, he is supposed to bear their expenses. 6. 5. Mr. Sanjaya Kumar Das, learned Standing counsel appearing for the Vigilance Department on the other hand supported the impugned order and contended that when the appellant has filed a long list of witnesses, out of which witnesses nos. 4 to 15 are the public servants, he is supposed to bear their expenses. 6. Rule 3(1)(a) of 2012 Rules states that the Criminal Courts are authorized to pay at the rates specified in the Schedule the expenses of witnesses, whether for the prosecution or for the defence, inter alia, in cases in which the prosecution is instituted, or carried on by, or under the orders of or with the sanction of the Government. Rule 4 of 2012 Rules stipulates that the expenses of a witness summoned at the instance of the complainant or accused under section 254 of Cr.P.C. shall not be withheld except on the ground of failure to do his duty as a witness when summoned. Rule 6 of the 2012 Rules states that the Government servants or the employees of the Railways, when summoned to give evidence in their public capacity shall receive nothing from the Court and in such case, they shall be paid travailing allowance at their own rates by the employing Government or the Railways, as the case may be, on production of a certificate of attendance granted by the Court. Rule 6 further provides as to how the payment is to be made to the employees of non-Government institutions like local bodies, Zila Parishads and Life Insurance Corporation etc. who give their evidence in their official capacity when summoned by the Criminal Courts. 7. On verification of the list of witnesses, it appears that witnesses nos. 4 to 15 are public servants and prayer has been made to produce certain official documents through them which obviously would indicate that those witnesses are to give evidence in their public capacity and not in their private capacity. The learned Authorized Officer has not kept in mind different provisions of 2012 Rules while passing the impugned order in directing the appellant to deposit tentatively the salary of one day of witnesses nos. 4 to 15. 8. The Govt. witnesses on being summoned by the Court to give evidence in their public capacity will be granted certificates of attendance by the Court. 4 to 15. 8. The Govt. witnesses on being summoned by the Court to give evidence in their public capacity will be granted certificates of attendance by the Court. If they produce such certificates, they will not only get their salary for the day but also travelling allowances as would be admissible to them from their authorities. If the delinquent-appellant deposits their one day salary and it is paid to Govt. witnesses along with the certificates of attendance, then they would get double salary for performance of their duties. 9. It cannot be lost sight of the fact that the confiscation proceeding has been initiated in the year 2014 and the appellant is a retired Government servant aged about 66 years and when at this stage, he is defending his case and trying to examine some official witnesses to substantiate that the initiation of confiscation proceeding is bad in law or the properties ear-marked by the State for confiscation are not liable to be confiscated by examining such official witnesses and calling for some official documents, it would be a travesty of justice, if he is prevented from examining such witnesses or proving such documents on the failure of depositing one day salary of all such official witnesses. 10. In such cases, some of public servants delinquents might have been retired after attending the age of superannuation and their pensionary benefits might have been withheld due to initiation of criminal cases and confiscation proceeding relating to disproportionate assets or otherwise. In such a situation, asking them to deposit one day salary of each of the official witnesses they intend to examine would be a painstaking job for them. They would hesitate to give their defence evidence by citing official witnesses apprehending the condition of expenses which is likely to be incurred by them by depositing the salary of the witnesses which would not only be unfair to the delinquent but also make the provisions of 2012 Rules meaningless. The purpose for which 2012 Rules was enacted, inter alia, is that nobody should be deprived in defending his case properly only because he is unable to pay the expenses of the witnesses whom he wants to examine. Access to justice is a constitutional right that inheres in every citizen irrespective of his race, class, sex, financial standing or other immutable characteristics which cannot be directly or indirectly hampered in any manner. Access to justice is a constitutional right that inheres in every citizen irrespective of his race, class, sex, financial standing or other immutable characteristics which cannot be directly or indirectly hampered in any manner. 11. In view of the aforesaid discussions, the impugned order dated 12.09.2017 passed by the learned Authorized Officer, Special Court, Cuttack is set aside and the matter is remanded to the said Court to reconsider the conditions stipulated for issuance of summons to witnesses nos. 4 to 15 as per list filed by the learned counsel for the appellant (delinquent no.1). 12. Accordingly, the CRLA is allowed.