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2021 DIGILAW 262 (ORI)

Aditya Kumar Mallick v. State Of Orissa

2021-06-22

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - Filing the Writ Petition challenge is made to the order at Annexure-1 solely on the premises of being ex parte in nature. There is no dispute between the parties that the case was finally heard on the date fixed i.e. on 6.8.2020 and neither of the parties appeared on the date fixed to attend the hearing proceeding involved herein. 2. Sri Arijeet Mishra, learned counsel for the petitioner referring to the impugned order alleges that adjudication of the matter was undertaken in a phased manner, inasmuch as, the prosecution witnesses were independently noticed to appear for leading their evidence in absence of notice to the owner and the owner is similarly independently noticed only after the completion of the evidence of all the prosecution witnesses to bring its witness for recording of evidence. Sri Mishra thus contended that there has been no fair recording of evidence of either party. It is also alleged that evidence of the prosecution witnesses have been recorded behind the back of the owner in absence of scope for cross-examination such evidence to be seriously affected in such proceeding. It is also alleged that there is no notice for appearance of the parties on the date of hearing besides there is also no opportunity of hearing. It is in this view of the matter, a claim is made by Sri Mishra for interfering in the order at Annexure-1 by setting aside the same remitting the matter for fresh disposal at least with opportunity of cross-examination to the owner involved herein with supply of copy of evidence of the prosecution witnesses. 3. Sri Sahoo, learned Additional Standing Counsel for the State appearing here in an attempt to defend the impugned order submitted that even though on the date of hearing none appeared as disclosed from the impugned order but from the contents of the impugned order it appears on the date of examination of the prosecution witnesses, the owner did not appear. Further on being noticed, defence has also produced evidence, which has been taken note of in the final determination of the matter. It is in this view of the matter, Mr.Sahoo attempted to justify the impugned order at Annexure-1 and prayed for dismissal of the Writ Petition. 4. Further on being noticed, defence has also produced evidence, which has been taken note of in the final determination of the matter. It is in this view of the matter, Mr.Sahoo attempted to justify the impugned order at Annexure-1 and prayed for dismissal of the Writ Petition. 4. Considering the rival contentions of the parties, this Court finds Section 56 of Orissa Forest Act, 1972 proceeding was reopened being remanded by the Appellate Authority, so the proceeding undisputedly involved a remand proceeding. Going through the impugned order, this Court from the cause title portion itself at page-1 of the order impugned herein finds there is clear disclosure that there was no appearance either of the appellant or the respondents on the date of hearing. Further going through the impugned order, this Court again finds statement of P.Ws.1, 2 and 3 have all been recorded behind back of the owner, opposite party no.1 therein. 5. Taking into consideration the allegation of the petitioner that he was never noticed to remain present in the examination of the prosecution witnesses, this Court here finds the Authorized Officer has adopted a procedure in examination of the witnesses and recording of evidence of such witnesses which is unknown to law. Even assuming the petitioner deliberately did not cooperate the proceeding involving recording of examination of evidence of prosecution witnesses, in absence of owner before proceeding to record evidence of the defence at least an opportunity should have been provided to the owner to cross-examine the prosecution witnesses before leading defence witnesses. There has been serious failure following the required procedure in the matter of recording of evidence. For the ex parte disposal of the proceeding under Section 56 of Orissa Forest Act, 1972 and further for the defective adoption of procedure in recording of evidence of the parties involved but however keeping in view that there has been recording of evidence of prosecution witness and also the recording of defence witnesses, D.W.1, this Court setting aside the order at Annexure-1 remits the matter back to the Authorized Officer to provide opportunity of cross-examination to the defence to all the prosecution witnesses examined therein upon supply of copy of the evidence of such witnesses and then also to provide the prosecution to have the opportunity of cross-examination to defence witnesses if they so desire and after giving opportunity of hearing to decide the proceeding freshly. Parties are directed to appear before the Authorized Officer on 14.07.2021 along with copy of the order of this Court and the proceeding involved herein shall also be concluded within a period of two months. 6. With the above direction, the writ petition stands succeed. However there is no order as to costs.