Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 766 (ORI)

Sibaram Ganthia v. State Of Orissa

2018-08-28

S.K.SAHOO

body2018
JUDGMENT S.K. Sahoo, J. - Heard Mr. Arun Kumar Das, learned counsel for the petitioners and Mr. Debi Prasad Dhal, learned counsel for the opposite party no.2. 2. In this application under section 482 of Cr.P.C., 1973 the petitioners have challenged the impugned order dated 27.06.2018 passed by the learned J.M.F.C., Daspalla in G.R. Case No. 26 of 2014 in allowing the 311 of Cr.P.C. petition filed by the informant and recalling some of the prosecution witnesses. 3. It is contended by the learned counsel for the petitioners that the petitioners earlier approached this Court in an application under section 482 Cr.P.C., 1973 vide CRLMC No. 840 of 2018 which was disposed of on 21.06.2018 and the following order was passed:- "Heard the learned counsel for the petitioner and learned Addl. Government advocate for the State. The limited grievance of the petitioner is that the application filed under section 311 Cr.P.C., 1973 by the informant is lingering for a long time. Since the petitioner under section 311 of Cr.P.C., 1973 should be disposed of as early as possible, it is directed that the court in session of the matter shall dispose of the petition filed by the informant Section 311 Cr.P.C., 1973 within period of three days from the date of production of certified copy of this order after affording reasonable opportunity of hearing to the petitioners by a reasoned order. Learned counsel for the petitioner undertakes to file the certified copy of this order before the court in session of the matter within a period of five working days." 4. It is submitted by the learned counsel for the petitioners that the order dated 21.06.2018 was produced before the learned Magistrate on 25.06.2018 and prior to that, the date of the case was fixed to 28.06.2018. Even though the order was passed on 21.06.2018 to afford reasonable opportunity of hearing to the petitioners and to pass a reasoned order, no opportunity was afforded but on 27.06.2018 the impugned order has been passed in an arbitrary manner. The limited prayer which has been made by the learned counsel for the petitioners is to give an opportunity of hearing to the petitioners to have their say on the 311 Cr.P.C. petition filed by the informant. 5. The limited prayer which has been made by the learned counsel for the petitioners is to give an opportunity of hearing to the petitioners to have their say on the 311 Cr.P.C. petition filed by the informant. 5. Learned counsel for the opposite party no.2 opposed the submission and submitted that the CRLMC No. 840 of 2018 was disposed of at the stage of admission and therefore, the informant could not get any opportunity to counter the submission which was made during the said proceeding. He submitted that in fact the objection to the 311 Cr.P.C. petition was filed and it was heard on 05.04.2018 and thereafter, when the order of this Court passed in CRLMC No. 840 of 2018 was produced before the learned trial Court, the Court passed the impugned order and therefore, there is no illegality in the order. 6. On careful analysis of the submissions of both the parties, it appears that after passing of the order dated 21.06.2018 by this Court, no opportunity of hearing has been given to the petitioners and the learned Magistrate has passed the impugned order. Even though there was an earlier hearing on the 311 Cr.P.C. petition as contended by the learned counsel for the opposite party no.2 in the month of April 2018 but when this Court has passed an order on 21.06.2018 to give a reasonable opportunity of hearing to the petitioners, in all fairness the learned Magistrate should have heard the petitioners before passing any order on the 311 Cr.P.C. petition. Since the same has not been done, I am inclined to accept the prayer made by the petitioners in this application and set aside the impugned order dated 27.06.2018. 7. Learned Magistrate shall fix a date for hearing of the 311 Cr.P.C. petition afresh and give opportunity of hearing to both the sides to have their say and thereafter, pass the necessary order in accordance with law without being prejudiced by the impugned order. 8. It is made clear that I have not expressed any opinion on the merits of the 311 Cr.P.C. petition which has been filed by the informant. The learned Magistrate is free to decide the 311 Cr.P.C. petition on its own merits afresh. Accordingly, the CRLMC application is disposed of.