Smt. Anita Panda vs State of Orissa

A.S. Naidu, J.—This matter was not in the cause-list, but on being mentioned before the Hon''ble Chief Justice, the records were called for and it was taken up for hearing.

The order dated 4-6-2003 passed by the J.M.F.C., Sambalpur in G.R. Case No. 798 of 2001 rejecting a petition filed under to recall some of the prosecution witnesses is impugned in this case.The accused-opposite party Nos. 2 to 4 have entered appearance through Shri B.P. Ray, Advocate''. The contention of the informant-Petitioner is vehemently opposed by Mr. Ray. According to him, the prosecution was deliberately taking time and the G.R. Case was being prolonged for several months, thereby causing immense hardship and prejudice to the accused�opposite parties who are persons of repute. Relying on the order-sheets of the Court below, Mr. Ray submitted that the prosecution in spite of thirty�six (approx) adjournments granted to it had failed to produce its witnesses and the Court below was therefore justified in closing the prosecution case. He also forcefully submitted that the order rejecting the petition filed by the informant-Petitioner u/s 311 Code of Criminal Procedure is a well-discussed one and suffers from No. infirmity at all and it is a fit case where the said order should not be interfered with.

Mr. Debasis Panda, Learned Counsel for the informant-Petitioner, at the other hand submitted that the summons issued to the witnesses were never served on them. The witnesses also did not know about the date to which the case stood posted for their evidence. According to Mr. Panda, the accused-opposite parties in order to dilly-dally the proceeding moved this Court in Cri. M.C. No. 582 of 2002 challenging the order of the Court below framing charges against them. This Court declined to interfere with the impugned order and directed the trial Court to expeditiously conclude the trial. It was submitted that the said order though passed in January, 2003, the same was produced before the Court below only in March, 2003 and the Court was prevailed upon to conclude the trial as expeditiously as possible. In view of the order passed by this Court, the Court below without affording adequate opportunity to the prosecution to produce its witnesses, closed the prosecution case. Thereafter the informant-Petitioner filed a detailed petition u/s 311 Code of Criminal Procedure humbly praying to permit her, her mother, her brother and the maid-servant as well as the police witnesses who were cited as prosecution witnesses to be examined in the case. According to the informant-Petitioner unless the aforesaid witnesses are examined, it would cause great prejudice to the prosecution.

It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. It is for the prosecution, or for the defence, to establish its respective case by adducing the best available evidence in Court. It is the duty of a Court not only to do justice, but also to ensure that justice is being done. In order to enable the Court to arrive at the truth and render a just decision, the salutary provision u/s 311 of the Code is enacted whereunder any Court by exercising its discretionary authority at any stage of the inquiry, trial or proceeding can summon any person as a witness or examine any: person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined, who are expected to be able to throw further light in the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. The words used in Section 311 clearly spell out that this Section is expressed in the widest possible term and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judiciously with circumspection and consistently with the provisions of the Code. It is incumbent upon the Court to take the care while exercising the power under this Section and it should not be used for filling up the lacuna left by the prosecution or by the defence.

A reading of the Section makes it clear that the Criminal Court has ample power to summon any person as a witness or recall and re�examine any such person even if the evidence of both sides is closed and the jurisdiction of the Court must obviously be dictated by exigencies of the situation and fair play and good sense appears to be the only safe guides and that only is the requirement of justice. Whether such power can be exercised or not would depend on the facts and circumstances of each case. At the cost of repetition it is stated that the paramount consideration while exercising power u/s 311 Code of Criminal Procedure should always be to find out the truth and render a just decision.

In the present case, whatever may be the laches on the part of the prosecution in the past, the fact remains; the Court below issued summons fixing 2nd of June, 2003 as the date of appearance of the witnesses for their evidence. The certified copy of the service return clearly reveals that the summons could not be served as the witnesses who belong to the same family had gone out in summer vacation. Thus, it appears that there was justifiable ground for their not appearing in Court on the date fixed.

Taking into consideration the entire scenario of the case in the touch-stone of the discussions made above, I feel, in order to unveil the truth and arrive at a just decision as well as for efficacious adjudication of the case, it would be proper to give another opportunity to the prosecution to produce its witnesses. Accordingly, I direct that the informant-Petitioner will appear along with her mother, her brother and the maid-servant before the Court below at their own costs to give evidence in the aforesaid case on 7th July, 2003 without fail. It is made dear that if the aforesaid witnesses do not appear on the aforesaid date, the order closing the prosecution case shall remain undisturbed. But then if the witnesses appear on the aforesaid date, the Court below shall record their evidence and shall also summon the police witnesses a would be convenient to the Court and thereafter proceed with the case in accordance with law.With the aforesaid observation, the Criminal Misc. Case is disposed of. The Court below is directed to act upon this order on the basis of the certified copy to be produced by either party.

Issue urgent certified copy on proper application.