Bijay Kumar Panda & Others vs State Of Odisha & Another

S. Pujahari, J

The judgment dated 20.02.2020 passed by the learned Sessions Judge, Cuttack in Criminal Appeal No.142 of 2019, arising out of the judgment of acquittal passed by the learned S.D.J.M. (Sadar), Cuttack in G.R. Case No.1053 of 2010 (T.R. No.253 of 2011) is called in question by the accused-petitioners under Section 401 read with Section 397 of Cr.P.C.

Heard the respective learned counsels for the petitioners and the opposite party no.2 (Informant) and also the learned counsel appearing for the State-opposite party no.1. Perused the impugned judgment and other relevant papers on record including the judgment dated 15.05.2019 rendered by the learned S.D.J.M., Sadar, Cuttack.

The prosecution vide the G.R. case referred to above, was launched pursuant to the F.I.R. lodged by the present opposite party no.2, wife of the petitioner no.2, and all the petitioners being arraigned as accused in the said case, faced trial for the offences under Sections 498-A, 406/34 of IPC. As it further appears, in course of the trial, the prosecution examined three witnesses, and the learned SDJM, Sadar, Cuttack on closing the prosecution side without examination of the other witnesses as cited in the charge-sheet including the Informant and the Investigating Officer, ultimately passed the judgment dated 15.05.2019 acquitting all the petitioners (accused persons) of the charges, on a finding that the prosecution miserably failed to prove its case. It may be mentioned here that, in course of the proceeding, the learned trial Court directed for closure of the prosecution on the ground that despite repeated summons, the Informant did not turn up to give evidence, and the attendance of the Investigating Officer also could not be procured despite summons, and the prosecution also failed to procure attendance of the Informant (victim), Investigating Officer and the other witnesses. Being aggrieved by the acquittal judgment so rendered by the trial Court, the Informant-opposite party no.2 preferred an appeal registered as Criminal Appeal No.142 of 2019 before the Court of the learned Sessions Judge, Cuttack, who vide the impugned judgment set-aside the said acquittal judgment and remitted back the case to the trial Court for a fresh trial and disposal after examining the material witnesses of the prosecution who had remained unexamined during the trial. Being aggrieved thereby, the accused-petitioners have approached this Court with the present revision petition.

It is the submission of the learned counsel for the petitioners that although the Informant was aware of the proceeding of the case before the trial Court, inasmuch as she had engaged an advocate, and despite repeated summons and process being issued through Court, post and otherwise, she having not attended the trial Court to give her evidence, and the learned prosecution counsel having failed to procure attendance of the Informant, the Investigating Officer and the other witnesses cited, there was no other way for the learned trial Court than to close the prosecution side and proceed ahead with the disposal of the case according to law. It is his further contention that the learned Sessions Judge being oblivious of the above fact which is clearly depicted from record, passed the impugned judgment by remanding back the matter to the trial Court, and if the said order is interfered with by this Court, the year old proceeding which dates back to the year 2010 will be unduly protracted to the gross prejudice and detriment of the accused-petitioners.

On the other hand, the learned counsel appearing for the Opposite party no.2 (Informant) submits that there being no proof on record showing service of summons on the Informant and other material witnesses, the observation of the trial Court regarding non-attendance of the material witnesses is erroneous and contrary to fair play of justice. While supporting the impugned judgment of the learned Sessions Judge, he submits that there is no scope for this Court to interfere with the same.

The learned counsel appearing for the State-opposite party no.1 has endorsed the contention of the opposite party no.2.

In a criminal proceeding, not only the accused has a right to claim a fair trial, the victim / prosecuting party has also an aspiration for impartiality and substantial justice from the Court. There may be cases where the prosecution counsel does not make the required effort to cause production of the material witnesses, the judicial system casts a duty on the Court to ensure that all the material witnesses are examined by the prosecution, and the defence is also allowed to adduce evidence as sought for, so as to do substantial justice. Needless to mention that in a prosecution for the offence under Section 498-A of IPC and allied offences, the wife is the key witness to depose evidence regarding the cruelty allegedly suffered by her at the hand of her husband and the relatives of her husband. In the case at hand, to reiterate, the Informant and other material witnesses from her parental side have not been examined, and as the judgment of the learned trial Court shows, three witnesses examined by the prosecution had no direct knowledge about the alleged incident. Although the record of the trial Court shows that summons had been issued for several times through Court and by post to the Informant and the CSW Nos.2 and 3, the order-sheets do not show service of summons on them. Similarly, though bailable warrants were shown to have been issued to secure their attendance, no follow up appears to have been taken for due execution of the warrants. In so far as the Investigating Officer is concerned, the record also does not show issuance of any letter to the Superintendent of Police or higher Police authority concerned to secure his attendance during the trial.

In the facts and circumstances as above, and for sake of substantial justice, this Court is not inclined to interfere with the impugned judgment of the learned Sessions Judge. At the same time, the Opposite party no.2 (Informant) is hereby directed to be sensitive of the oldness of the proceeding and to appear before the trial Court to get her evidence recorded.

In the result, this CRLREV is dismissed with the directions as under:-

(i) The Opposite party no.2 (Informant) shall produce a copy of this order before the learned SDJM, Sadar, Cuttack on a working day within fifteen days hence so as to enable the trial Court to record her evidence on the same date subject to availability and readiness of the defence side to participate in the trial, or to fix another date for her evidence.

(ii) On receipt of a copy of this order either from the side of the Informant or otherwise, the learned SDJM, Sadar, Cuttack shall do well to record the evidence of the Informant subject to availability and readiness of the prosecution counsel and the defence side for the purpose, or to fix another date in the presence and to the knowledge of the Informant and also to the knowledge of the prosecution counsel and the defence side, for recording of the evidence of the Informant.

(iii) On the date of production of the copy of order, the Informant shall furnish the details of her present address as well as the address of her relatives who have been cited as witnesses in the charge-sheet ad not examined, so as to enable the trial Court to issue process to them, if so required, for the purpose of the case.

(iv) The trial Court shall not be required to issue summon to the Informant, after intimating her the date of recording of her evidence as per the directions given above, inasmuch as this Court has directed the Informant to receive the order of the Court by appearing in person.

(v) The learned prosecution counsel shall take note of the directions given above and render his due participation during the trial of the case. He shall furnish a list of other material witnesses including the relatives of the Informant to the trial Court, so that summon shall be issued to them for recording their evidence.

(vi) The learned trial Court shall do well to expedite the trial and dispose of the case within six months from the date of receipt of this order by him.

(vii) In the event the Informant does not comply with the directions given above, without any lawful excuse, the trial Court shall be free to pass appropriate order for disposal of the case according to law.

(viii) Both the prosecution counsel and the defence side shall render due cooperation / assistance to the learned trial Court for disposal of the case within the time stipulated as above.

A copy of this order be communicated to the trial Court forthwith. A copy of this order be also handed over to the learned counsel appearing for the Opposite party no.2-Informant.

Urgent certified copy of this order be granted on proper application.

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