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2019 DIGILAW 416 (ORI)

Suresh Chandra Suara v. State Of Orissa (Vig. )

2019-06-24

S.K.SAHOO

body2019
JUDGMENT S. K. Sahoo, J. - This is an application under section 482 of the Code of Criminal Procedure, 1973 filed by the petitioner Suresh Chandra Suara, OAS-I (SB), the Ex-Project Director, D.R.D.A. challenging the impugned order dated 19.07.2018 passed by the learned Special Judge, Special Court, Bhubaneswar in T.R. Case No.2/18 of 2012/2008 in rejecting the petition under section 311 of Cr.P.C., 1973 dated 19.04.2018 filed by the petitioner to summon the Secretary to the Government in Home Department to cause production of the file in which notification No.SRO No.294/2011 dated 30.04.2011 was issued through a competent officer to depose as to the contents of the said file relying upon the ratio laid down by the Hon'ble Supreme Court in case of Yogendra Kumar Jaiswal vs. State of Bihar reported in (2016) 63 Orissa Criminal Reports (SC) 426. 2. It appears that the petitioner is facing trial for commission of offence under section 13 (2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 and the evidence from the prosecution side is under progress. 3. Learned counsel for the petitioner, Miss Anima Kumari Dei submitted that if such notification is produced by the competent officer and proved during trial, then it would show that the petitioner was not holding any "high public or political office" in the State of Odisha as contemplated under the Odisha Special Courts Act, 2006 at the relevant point of time. 4. Mr. Niranjan Moharana, learned Addl. Standing Counsel for the Vigilance Department on the other hand submitted that in Yogendra Kumar Jaiswal (supra) case, the Hon'ble Supreme Court has held that the words 'high public or political office' not being defined does not create a dent in the provision. Those words convey a category of public servants which is well understood and there is no room for arbitrariness. 5. In the context of the Odisha Special Courts Act, 2006, it is associated with high public office or with political office which are occupied by people who control the essential dynamic of power which can be a useful weapon to amass wealth adopting illegal manner. 5. In the context of the Odisha Special Courts Act, 2006, it is associated with high public office or with political office which are occupied by people who control the essential dynamic of power which can be a useful weapon to amass wealth adopting illegal manner. It is further contended by the learned counsel for the Vigilance Department that the notification has been published in the Government Gazette and the petitioner can obtain the same by filing proper application and if such notification is produced at the appropriate stage, it can be marked as an exhibit from the side of the defence and at this stage, when the prosecution evidence is going on, filing of such petition under section 311 of Cr.P.C., 1973 by the petitioner to call a particular witness to produce the document is not permissible and such method has been adopted just to delay the proceeding. It is further submitted that the petition under section 482 of Cr.P.C., 1973 is not maintainable against the impugned order in view of section 9 of the Odisha Special Court Act, 2006. 6. Coming to the question of maintainability as pointed out by the learned Addl. Standing Counsel for the Vigilance Department, it appears that so far as the section 5 of the Odisha Special Courts Act, 2006 is concerned, if a declaration is made by the State Government that there is prima facie evidence relating to commission of offence under the Prevention of Corruption Act alleged to have been committed by a person who held high public or political office in the State of Odisha, such declaration shall not be called in question in any Court. So far as section 9 of the said Act is concerned, it clearly stipulates that against the judgment and sentence passed by the Special Court, an appeal is maintainable to the High Court both on facts and law and except such appeal, no appeal or revision shall lie in any Court from any judgment, sentence or order of a Special Court. If sub-sections (1) and (2) of section 9 are read together, it is clear that an appeal will only be maintainable against the judgment and sentence passed by the Special Court. If sub-sections (1) and (2) of section 9 are read together, it is clear that an appeal will only be maintainable against the judgment and sentence passed by the Special Court. In this case, however the petitioner has challenged the rejection of his petition under section 311 Cr.P.C., 1973 The Hon'ble Supreme Court in the case of Sethuraman vs. Rajamanickam reported in (2009) 5 SCC 153 has held that the orders passed by the trial Court refusing to call the documents and rejecting the application under section 311 Cr.P.C., 1973 are interlocutory orders and as such, the revision against those orders is clearly barred under section 397(2) Cr.P.C., 1973 I am of the humble view, if any illegality is committed by rejecting such petition, an aggrieved person cannot be left remediless. The inherent powers of the High Court is there to prevent abuse of process of any Court or otherwise to secure the ends of justice. Therefore, an application under section 482 of Cr.P.C., 1973 is maintainable against such order. Thus the objection relating to maintainability of this petition which was raised by the learned Addl. Standing Counsel for the Vigilance Department is not sustainable. 7. So far as the notification issued by the Government in Home Department is concerned which was sought for by the petitioner in the midst of the prosecution evidence, I am of the humble view that the learned trial Court has not committed any illegality in rejecting such petition at that stage though on a different ground. 8. section 5 of the Prevention of Corruption Act, 1988 prescribes procedure and powers of the Special Judge wherein it is mentioned that in the trial of the offence under Prevention of Corruption Act, the trial of warrant cases by the Magistrates as prescribed by the Cr.P.C. is to be followed. 8. section 5 of the Prevention of Corruption Act, 1988 prescribes procedure and powers of the Special Judge wherein it is mentioned that in the trial of the offence under Prevention of Corruption Act, the trial of warrant cases by the Magistrates as prescribed by the Cr.P.C. is to be followed. Trial of warrant cases by Magistrate comes under Chapter-XIX of the Cr.P.C. section 243 of Cr.P.C., 1973 which relates to the evidence for defence, in sub-section (2), it is stated that if the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing. Needless to say, the petitioner will get ample opportunity at the stage of adducing defence evidence to summon any witness or any document and in that respect he has to file appropriate application at that stage which is to be considered by the learned trial Court in accordance with law. 9. Therefore, in view of the foregoing discussions, I am not inclined to interfere with the impugned order dated 19.07.2018. 10. Accordingly, the CRLMC application being devoid of merits, stands dismissed.