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2017 DIGILAW 737 (ORI)

Amaresh Ku. Jayaswal v. State of Orissa (Vig. )

2017-07-17

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. The appellant Amaresh Kumar Jayaswal has filed this appeal under section 17 of the Orissa Special Courts Act, 2006 to set aside the impugned order dated 28.06.2017 passed by the learned Authorised Officer, Special Court, Cuttack in Confiscation Case No.08 of 2012 in rejecting the petition dated 05.06.2017 filed by the appellant with a prayer for the production of National Sample Survey Organization report from the year 1987-88 to 2002 from the Directorate of Statistics for the purpose of further cross examination of P.W.1. 2. The learned Authorized Officer rejected the petition mainly on the ground that the prosecution cannot be compelled to produce documents as a party cannot compel another party to produce documents and therefore, it is not desirable to direct the prosecuting agency for production of voluminous documents such as the reports prepared by the National Sample Survey Organization for the period from 1987-88 to 2002. It is further observed in the impugned order that the learned counsel for the delinquents has already cross examined touching all aspects with regard to per capita consumer expenditure of the delinquent and his family members for the relevant time. 3. Miss Mohapatra, learned counsel appearing for the appellant contended that there is no dispute that the per capita consumption expenditure report which has been marked as Ext.2 in the confiscation proceeding proved by P.W.2 is based on National Sample Survey Reports. Learned counsel for the appellant further contended that the rates which have been quoted in the National Sample Survey Reports of the relevant years are at variance with the figure that has been given by P.W.1 in his report under Ext.2 and therefore, a prayer was made to call for the National Sample Survey Reports from the year 1987-88 to 2002. 4. However, today the learned counsel for the appellant filed an affidavit annexing the reports of the National Sample Survey Reports from the year 1987-88 to 2002 and pointed out the discrepancies in the reports vis-a-vis the report which has been prepared by the P.W.1 as per Ext.2. 5. 4. However, today the learned counsel for the appellant filed an affidavit annexing the reports of the National Sample Survey Reports from the year 1987-88 to 2002 and pointed out the discrepancies in the reports vis-a-vis the report which has been prepared by the P.W.1 as per Ext.2. 5. It is contended by the learned counsel for the appellant that such reports are available in the website and these are all public documents and since now the reports are available with the appellant, he intends to file all those reports before the learned Authorized Officer and since the cross-examination of the P.W.1 is not yet over, he wants to bring such reports to the notice of P.W.1 and confront the reports with reference to the figures mentioned in Ext.2. 6. Learned Standing Counsel for the Vigilance Department submitted that since the report is voluminous and in identical matter in Criminal Appeal No.03 of 2017, vide order dated 20.02.2017 such a prayer was turned down, therefore, there is no justification for passing a contradictory order. 7. Each case depends upon its own facts and circumstances and no straight jacket formula can be laid down that once an order is passed in a particular case in a particular situation that is to be universally applied in all the cases. The ratio of one case cannot be applied like a Euclid’s theorems to the other unless the facts of the case in hand, if not exactly, but substantively deals with the same situation. What is of the essence in a decision is its ratio and not every observation found therein not what logically flows from the various observations made in the judgment. 8. When an application is filed before any Court with a prayer for causing production of any document, the application must specifically state as to in what way such production will assist the Court in adjudicating a matter and thereafter, the Court has to apply its judicial mind and take a decision about the necessity or desirability of such document. The Court cannot pass an order for production of a document in a mechanical manner on a vague petition which does not indicate its necessity or desirability. In other words, the documents called for invoking power under section 91 of Cr.P.C. must have some sort of relevancy with the matter under investigation, inquiry or trial. The Court cannot pass an order for production of a document in a mechanical manner on a vague petition which does not indicate its necessity or desirability. In other words, the documents called for invoking power under section 91 of Cr.P.C. must have some sort of relevancy with the matter under investigation, inquiry or trial. Jurisdiction under section 91 of the Code when invoked by the accused before the stage of defence, the necessity and desirability would have to be seen by the Court in the context of the purpose i.e. investigation, inquiry, trial or other proceeding under the code. In the case of Om Prakash Sharma Vrs. C.B.I. reported in A.I.R. 2000 S.C. 2335, the Hon’ble Supreme Court held that the language of Section 91 Cr.P.C. would, no doubt, indicate the width of the powers to be unlimited but the in-built limitation inherent therein takes in colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceeding as also the compulsion of necessity and desirability, to fulfill the task or achieve the object. The Court concerned must be allowed large latitude in the matter of exercise of discretion and unless in a given case the Court was found to have conducted itself in so demonstrably unreasonable manner unbecoming of a judicial authority, the Court superior to that Court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. 9. Since the cross-examination of P.W.1 is not yet over, the appellant is at liberty to file the true copies of the National Sample Survey Reports for the relevant years before the learned Authorized Officer with a memo indicating the source from which he obtained the same. The learned Authorized Officer in such eventuality shall permit it to be brought to the notice of P.W.1. If P.W.1 after verifying the reports produced by the appellant does not dispute its authenticity, the reports can be marked as exhibit from the side of the appellant and then the learned Authorized Officer shall permit the appellant to put questions to P.W.1 on such reports vis-a-vis the report which has been prepared by P.W.1 and marked as Ext.2. 10. With the aforesaid observation, the Criminal Appeal is disposed of.