PUJA PADMANAVA PANDA SAMANTA vs STATE OF ORISSA AND ANOTHER

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S. K. SAHOO, J.

Heard Mr. Asutosh Mohanta, learned counsel for the petitioner and learned Additional Standing Counsel for the State. The petitioner has filed this

application under section 482 of Cr.P.C. to quash the impugned order dated 22.08.2006 passed by the learned Second Addl. Sessions Judge, Puri in

Crl. Revision No.37 of 2005 in dismissing the revision petition and thereby confirming the order dated 22.03.2005 passed by the learned J.M.F.C., Puri

in G.R. Case No.730 of 2001 in rejecting the prayer made by the prosecution under section 311 of Cr.P.C. to recall P.W.1 Ganesh Mekap and P.W.5

Sibanarayan Pujapanda for further examination and to direct the President, Puja Panda Nijog, Shree Mandir, Puri to produce some documents.

 Learned counsel for the petitioner contended that P.Ws.1 and 5 are important witnesses for the prosecution and they have not supported the

prosecution case and their previous statements made before police during investigation have not been confronted to them and in absence of such

confrontation, the petitioner who is the informant is likely to be prejudiced. Learned counsel for the petitioner relied upon a decision of Hon’ble

Supreme Court in case of U.T. of Dadra and Haveli and another -Vrs.- Fatehsinh Mohansinh Chauhan reported in (2006) 35 Orissa Criminal Reports

(SC) 269 wherein it is held as follows:-

“12. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 of

Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct

decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of

finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in prosecution

case†unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious

prejudice to the accused resulting in miscarriage of justice.â€​

The learned Magistrate while rejecting the petition filed by the prosecution held that P.W.1 has already been examined who declined to have

remembered anything about the case matter. Similarly P.W.5 has been declared hostile by A.P.P. and permitted to put leading questions. It is further

held that non-seizure of documents by the I.O. is a lacuna in the prosecution and calling for witness for further examination are meant for filling up

laches and lacuna inherent in the prosecution. The learned revisional Court held that it is a case under sections 341/323/324 of the Indian Penal Code

in which P.Ws.1 and 5 are shown to be eye witnesses to the occurrence and they have not supported the prosecution case and P.W.1 has not been

declared hostile and on the other hand P.W.5 has been declared hostile by the prosecution and during cross-examination under section 154 of the

Indian Evidence Act, some part of previous statements were confronted to him. Learned revisional Court has taken note of the observation made by

the learned trial Court that holding of cross-examination of P.Ws.1 and 5 are not essential for just decision of the case and the documents sought to be

called for being documents containing official secrecy, no direction can be issued to produce the same. Learned revisional Court further held that if the

petition under section 311 of Cr.P.C. is allowed, there is chance of the prosecution patching up the lacuna created so far in its case and therefore, held

that the learned trial Court was justified in arriving at a conclusion that further cross-examination of P.Ws.1 and 5 and production of the documents

sought for is not essential for the just decision of the case.

In case of Krishnan -Vrs.- Krishnaveni reported in (1997) 13 Orissa Criminal Reports (SC) 41, it is held that the object of Section 397(3) of Cr.P.C. is

to put a bar on simultaneous revisional applications to the High Court and the Court of Session so as to prevent unnecessary delay and multiplicity of

proceedings. When revision has been barred by section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse to the

revision to the High Court under section 397(1) of the Code or under inherent powers of the High Court under section 482 of the Code since it may

amount to circumvention of the provisions of section 397(3) or section 397(2) of the Code. It was further held that when the High Court on

examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has

not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the

High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet ends of justice or to prevent

abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent

power and in appropriate case even revisional power under section 397(1) read with section 401 of the Code.

During course of argument, Mr. Asutosh Mohanta, learned counsel appearing for the petitioner has failed to point out any glaring infirmity in the

impugned orders passed by the learned Courts below for which grave miscarriage of justice is being done. It seems a bogus petition was filed by the

prosecution before trial Court and the informant has carried the unsuccessful attempt by the prosecution to the Court of Session in a revision petition

and also to this Court in this application under section 482 of Cr.P.C. for which a case involving minor offences under sections 341/323/324 of the

Indian Penal Code which of the year 2001 is still continuing before the Magistrate. Â I am of the view that there is no perversity in the impugned

order and therefore, I am not inclined to interfere with the same. Accordingly, the CRLMC application being devoid of merits stands dismissed.