Lingraj Panda vs State of Orissa

I. Mohanty, J.—Heard Mr. Tripathy, Learned Counsel for the Petitioner and Mr. Pani, Learned Counsel for the Vigilance Department.

In the present application u/s 482 Code of Criminal Procedure, the Petitioner has sought to challenge the order dated 4.3.2011 passed by the learned Special Judge, Vigilance, Bhubaneswar in T.R. Case No. 72 of 1997 rejecting the petition filed by the defense counsel praying to direct the prosecution to secure the attendance of PW11 or in alternative expunge evidence of the said witness.

Mr. Tripathy, Learned Counsel for the Petitioner submits that by the order dated 7.2.2011, a petition filed by the defense to recall PWs 10 and 11 for further cross-examination was allowed subject to deposit of Rs. 250 towards the witness cost. On 28.2.2011, PW10 Akhil Kr. Panda was present and was duly cross-examined. But so far as PW11 is concerned, by a later order dated 28.2.2011, on the prayer of the learned Special P.P. for Vigilance, direction was issued for issue of B.W. of Rs. 1,000 against PW11 to secure his attendance.

The impugned order dated 4.3.2011 would indicate that a report was submitted by the D.S.P. (Vigilance), Khurda to effect that PW11 Banambar Das had gone to Bangalore for labor work for which he could not be produced. Pursuant to the report fired, the learned defense counsel filed a petition praying to direct the prosecution to secure the attendance of PW11 or in alternative, the evidence of the said witness may be expunged. That petition came to be rejected by the trial Court hence, the present petition.

Mr. Tripathy, Learned Counsel for the Petitioner submits that once the trial Court directed recall of PW11 for further cross-examination, it is the duty of the prosecution to produce the said PW. and merely stating that the said PW left for Bangalore for labor work, cannot absolve the prosecution from producing the said witness for further cross-examination.

Mr. Pani, learned Standing counsel for Vigilance, on the other hand, submits that the prosecution visited the village of PW11 and ascertaining the aforesaid fact, expressed its inability to produce the said witness on the date fixed. He further submits that since the matter is of the year 1997 and keeping in view the directives of the High Court for early disposal of the old cases, the trial Court proceeded with the matter without waiting for further cross-examination of PW11.

Considering the submissions advanced by the Learned Counsel for both the parties, I am of the considered view that it is the onerous duty of the prosecution to see that the direction of the Court is duly complied with Interestingly the trial Court in its order dated 4.3.2011 has observed that though as per the report of the D.S.P. (Vigilance) PW11 had gone to Bangalore since the last one month for labor work, he is expected to return to his village by the coming Dola Pumima and it is not known as to why the prosecution could not have sought for an adjournment to produce the said witness since there was every likelihood of such witness returning to his village within a short period.

No doubt the High Court is repeatedly calling upon the trial Courts to dispose of old cases and the present case being of the year 1997 requires early disposal, but at the same time it is the duty of the Court to see that the requirement of law which mandates adequate opportunity to the defense, is complied with. In the present case, B.W. was issued 28.2.2011 and on 4.3.2011 the impugned order was passed effectively within four days from the date of issue of B.W. It appears from the record that no effective step was taken by the prosecution to execute the B.W. and produce PW11 for the further cross-examination.

In view of the aforesaid facts, the Crl MC is allowed and the impugned order dated 4.3.2011 is quashed. The prosecution is directed to take all effective measures to produce PW11 before the trial Court for his further cross-examination at the earliest.

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

Petition allowed.