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IN THE HIGH COURT OF ORISSA AT CUTTACK
S.K. SAHOO, J.
State of Orissa - Petitioner
Versus
Gokulananda Mohapatra – Opp. Parties
SUO MOTU CRREV NO.74 of 1997
Decided On : 09-03-2017
2. CRIMINAL PROCEDURE CODE, 1973 - Sec.242 (2) - Magistrate may, on the application of the prosecution issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (Para - 11)
3. CRIMINAL PROCEDURE CODE, 1973 - Sec.242 (2) - Prosecution has a right to request the Magistrate to summon witnesses and if its request to summon the witnesses has been allowed, it is the duty of the Magistrate to scrutinise the cause of non-service of summons on the witnesses summoned and without so scrutinising, he should not proceed to decide the case - If the prosecution fails to produce the witnesses or inspite of due service of summons, the witnesses do not appear in Court, the Court should not dispense with the evidence of such witnesses or go on showing indulgence and adjourning the case for a longer period - Further stated.
Once the Court issues process against the witnesses, it is the bounden duty of the Court to enforce their attendance and use all coercive methods to secure their presence and therefore, closure of the prosecution evidence due to non-appearance of the witnesses without taking any suitable measures/steps in that respect would be improper. The Magistrate cannot act in an arbitrary manner and it is the duty of the Magistrate to see whether in compliance of the order passed by the Court, summons have been issued to the witnesses or not and it is also the duty to see whether the said summons have been actually sent to the witnesses or not and if the summons have been sent to the witnesses, then whether the said summons have been served on the witnesses or not and if the witnesses failed to appear even after due service of summons then the Court can take resort to the provision under Section 87 of the Cr.P.C. and the Magistrate cannot throw away his responsibility and acquit the accused for want of evidence. (Para - 11)
4. CONSTITUTION OF INDIA, 1950 - Art. 21 - A speedy and fair trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in the article - It protects the accused against pre-trial harassment, saves the accused from anxiety and public suspicion due to unresolved criminal charges and protects the risk of evidence being lost and memories of the witnesses being dimmed by passage of time and the witnesses losing interest in the case.
One of the main reasons for delayed trial is the delay in service of summons on the witnesses and sometimes summons remains unserved for months together. There is shortage of staff in the lower Courts for service of summons. The response of different Government Departments to the summons issued by the Trial Court for attendance of the official witnesses working in such departments is very poor which compel the Court to adjourn the cases on the ground of non-availability of witnesses and sometimes to close the prosecution case. When cases in different Courts are on the rise, absence of appropriate infrastructure, presiding officers and manpower will further worsen the situation. Without the active and timely participation of the prosecuting agency, the accused and effective measures being taken by the Court, the concept of 'speedy trial' would remain a distant dream. (Para - 13)
JUDGMENT :
S. K. SAHOO, J.
1. This suo motu criminal revision proceeding has been initiated on the basis of the letter dated 20.05.1996 of the learned District Judge, Phulbani addressed to the Registrar (Administration) of this Court wherein it was pointed out during his sessions circuit at Baliguda in the month of April 1996, certain irregularities were found in the impugned judgment and order dated 22.03.1996 passed by the learned S.D.J.M., Balliguda in G.R. Case No.271 of 1988 (T.R. No.907 of 1992) in which the opposite party faced trial for offences punishable under sections 409/477-A of the Indian Penal Code for committing criminal breach of trust by misappropriating the controlled commodities i.e. rice, wheat and sugar worth of Rs.3,85,919.53 paisa by falsifying the account in the concerned registers and files and he was acquitted of all the charges.
2. The first information report was lodged by the Secretary, R.C.M.S., Raikia vide letter no.714 dated 02.11.1988 (Ext.4) before the officer in charge, Balliguda Police Station wherein it is indicated that the opposite party was appointed to act as a salesman in the Raikia R.C.M.S. Ltd. as per order no.278 dated 01.12.1984 of the secretary, Raikia R.C.M.S. Ltd. The opposite party was transferred vide office letter no.67 dated 27.07.1987 to act as Branch in-charge of Balliguda Branch and accordingly, he took over the charge of the said Branch. The opposite party continued as such till 06.10.1988 when he applied for leave from 07.10.1988 to 10.10.1988 by sending an application by post. On expiry of the leave period, the opposite party did not resume his duty and he was recalled to join his duty after refusal of extension of leave further. Suspecting shortage of Government stock in the storage godowns, the Executive Magistrate as per wireless message dated 11.10.1988 of the Collector, Phulbani sealed the godown. When the petitioner did not resume his duty till 29.10.1988, on the requisition to the Sub-Divisional Officer (Civil), Balliguda, the godowns at Balliguda, Kutikia, Khomankhole and Sindrigaon were broke open in presence of the Executive Magistrate on 29.10.1988. During verification of the godowns, it was found that there was shortage of the controlled rice of Q.877.60.640 worth of Rs.3, 37,878.46, wheat of Q.97.01.500 worth of Rs.32,791,07 and sugar of Q.25 worth of Rs.15,250.00 and total value of controlled commodities found shortage came to Rs.3,85,919.53. It is further stated in the first information report that the opposite party while discharging his duty as the Branch in-charge, received Government stock from F.C.I., Phulbani for issuing the same to the retailers as per the orders of the Supply Authorities but with malafide intention, he suppressed the facts of entry of the stocks in the books of account received from F.C.I., Phulbani and caused deficit to the stocks. The godownwise verification reports conducted by the Civil Supplies Authorities were filed along with the first information report.
3. On the basis of such first information report, Balliguda P.S. Case No.80 of 1988 was registered on 03.11.1988 under section 409 of the Indian Penal Code by the officer in charge, Balliguda Police Station who himself took up the investigation of the case.
During course of investigation, the Investigating Officer examined the informant, visited Raikia godown, Balliguda, arrested the opposite party on 04.05.1989 and forwarded him to the Court. The case was taken over for investigation by the Inspector, CID, CB, Orissa, Cuttack on 10.01.1991 who examined some of the material witnesses and after completion of investigation, charge sheet was submitted on 24.06.1992 under sections 409 and 477-A of the Indian Penal Code against the opposite party.
4. During course of trial, in order to prove its case, the prosecution examined twelve witnesses.
P.W.1 Khageswar Pradhan was the accountant of R.C.M.S. Ltd., Raikia and he stated about the seizure of the log books of vehicle nos. ORL 1211
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