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2017 DIGILAW 979 (ORI)

Amosh Satrusalya v. State of Orissa

2017-09-04

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. 1. Heard Mr. Prasanna Kumar Mishra, learned counsel for the petitioners and Mr. Prem Kumar Patnaik, learned counsel for the State. 2. In this application under section 482 of Cr.P.C., the petitioners who are the accused persons in S.C. No.16 of 2003 (S.C. No.419 of 2003 GDC) pending in the Court learned Additional Sessions Judge, Parlakhemundi have challenged the impugned order dated 26.08.2004 passed by the learned trial Court in rejecting their petition filed to issue summons to the Secretary, Home Department, Secretariat, Orissa, Bhubaneswar to produce the statement of the investigating officer recorded by the Hon’ble Justice K.C. Jagdev Roy Commission relating to Ranalai incident for confronting it to him in the interest of justice. 3. The first information report in this case was lodged by one Laxman Patra before the R. Udayagiri police station, on the basis of which R. Udayagiri P.S. Case No.12 of 1999 was registered under sections 147, 148, 323, 436 read with section 149 of the Indian Penal Code and section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and after submission of charge sheet, the petitioners were charged in the learned Trial Court for offences punishable under sections 120-B, 147, 148, 294, 506, 337, 323, 435 read with section 149 of the of the Indian Penal Code and section 3 of the 1989 Act. 4. It appears that during course of trial, after examination of other witnesses, the investigation officer was examined as P.W.17. During course of examination of the I.O., a suggestion was given to him by the defence that he had given his statement before the Hon’ble Justice K.C. Jagdev Roy Commission relating to the same incident, to which he answered affirmatively but the witness denied that unless he saw the statement originally, he cannot say what statement he had given before the Hon’ble Commission and thereafter, a petition was filed by the petitioners under section 91 of the Cr.P.C. for issuance of summons to the Secretary, Home Department, Secretariat, Orissa, Bhubaneswar as aforesaid. The learned trial Court relying upon the ratio laid down by the Hon’ble Supreme Court in the case of Kehar Singh -Vrs.-The State (Delhi Admn.) reported in A.I.R. 1988 Supreme Court 1883, rejected the petition. 5. Mr. The learned trial Court relying upon the ratio laid down by the Hon’ble Supreme Court in the case of Kehar Singh -Vrs.-The State (Delhi Admn.) reported in A.I.R. 1988 Supreme Court 1883, rejected the petition. 5. Mr. Prasanna Kumar Mishra, learned counsel appearing for the petitioners contended that the impugned order of rejection passed by the learned Trial Court is illegal and in the interest of justice, the statement should have been called for as the investigating officer had stated in a different manner before the commission of inquiry and the confrontation of such statement relating to Ranalai incident to the I.O. (P.W.17) was very much necessary. 6. Mr. Prem Kumar Patnaik, learned Addl. Govt. advocate supported the impugned order and contended that the purpose of holding commission under the Commissions of Inquiry Act, 1952 (hereafter ‘1952 Act’) is different than the investigation of a criminal case and in view of the bar under section 6 of the said Act regarding restriction of use of statements made by persons to the Commission, the learned trial Court was justified in rejecting such petition. Section 6 of the 1952 Act read as follows:- “6. Statements made by persons to the Commission.– No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence by such statement: Provided that the statement- (a) is made in reply to a question which he is required by the Commission to answer, or (b) is relevant to the subject-matter of the inquiry. 7. In case of Kehar Singh -Vrs.-The State (Delhi Admn.) reported in A.I.R. 1988 Supreme Court 1883, it is held as follows:- “Statement made by a witness before the Commission constituted under the Commissions of Inquiry Act cannot be used (i) to subject the witness to any civil or criminal proceedings, (ii) nor it can be used against him in any civil or criminal proceedings the exception being that he can be prosecuted for giving false evidence. A perusal of sections 145, 155 and 157 of the Evidence Act clearly indicate that there are two purposes for which a previous statement can be used. One is for cross-examination and contradiction and the other is for corroboration. A perusal of sections 145, 155 and 157 of the Evidence Act clearly indicate that there are two purposes for which a previous statement can be used. One is for cross-examination and contradiction and the other is for corroboration. When the defence wants to use the previous statement of a witness, it could be only to contradict and not to corroborate. However, considering the restrictions contained in section 6 of the Commissions of Inquiry Act, the statement made by a witness before a Commission could not be used in a criminal trial either for the purposes of cross-examination to contradict the witness or to impeach his credit. Held that in view of the prohibition contained in section 6 of the Commissions of Inquiry Act, the copies of the statements made by the witnesses before the Commission could not be supplied to the accused. The Report of the Thakkar Commission could neither be summoned by the Court since it has no evidentiary value in the trial of a criminal case.” 8. It would be appropriate to take note of the fact that in this case, the prosecution has not relied upon statement of the investigating officer made before the Commission. It was the petitioners who requested the learned trial Court to call for the copy of such statement made before the Commission for confronting the witness with reference to such statement as part of their defence. It cannot be disputed that the statement made by any person before the Commission of Inquiry under Section 6 of the 1952 Act is wholly inadmissible in evidence in any future proceedings, civil or criminal against him except a prosecution for giving false evidence by such statement. In the case of State Bank of India -Vrs.-National Housing Bank and Ors. reported in A.I.R. 2013 S.C. 3478, it is held that the statements made before the Commission of Inquiry cannot be used as evidence before any civil or criminal Court. It should logically follow that even the conclusions based on such statements can also not be used as evidence in any Court. 9. No doubt the accused has a right to get a fair trial and therefore, reasonable opportunity to defend himself in the trial should be provided by the trial Court. It should logically follow that even the conclusions based on such statements can also not be used as evidence in any Court. 9. No doubt the accused has a right to get a fair trial and therefore, reasonable opportunity to defend himself in the trial should be provided by the trial Court. However, when there is some legal bar in some special statute, in the name of reasonable opportunity, the accused cannot be permitted to flout such bar. 10. In view of law laid down by the Hon’ble Supreme Court, it is clear that the statement of the investigating officer (P.W.17) before the Commission which was sought to be called for by the defence for the purpose of confrontation to him is not permissible, as such statement cannot be used in the criminal trial for confronting the witness to contradict him or to impeach his credit. 11. Therefore, I am of the view that there is no illegality or infirmity in the impugned order passed by the learned trial Court. Accordingly, the CRLMC application being devoid of merit stands dismissed. 12. The order of interim stay of further proceeding stands vacated. 13. Let a copy of this judgment be immediately sent down to the learned trial Court. Since it is a case of the year 1999, the learned trial Court is directed to proceed with the case with utmost expedition.