CRLMC No. 2680 of 2010. Case: Akshaya Kumar Patra Vs State of Orissa. High Court of Orissa (India)

Case NumberCRLMC No. 2680 of 2010
CounselFor Appellant: M/s S.K. Sahoo, G. Sahoo, B. Dash, M.K. Mallik, D.P. Pattnaik, B.P. Mohanty & A. Mohanty and For Respondents: Additional Government Advocate
JudgesMr. Indrajit Mahanty, J.
IssueCriminal Procedure Code (CrPC) - Sections 161, 311 and 482; Indian Penal Code - Sections 34 and 302; N.I. Act - Section 138
Judgement DateAugust 30, 2011
CourtHigh Court of Orissa (India)

Judgment:

Indrajit Mahanty, J., (Cuttack)

  1. This application under Section-482 Code of Criminal Procedure has been filed by the Petitioner-accused seeking to challenge the order dated 13.09.2010 passed by the learned Additional Sessions Judge, Fast Track Court, Athagarh in S.T. Case No. 33 of 2006 arising out of Athagarh P.S. Case No. 49 of 2000, whereby, an application under Section 311 Code of Criminal Procedure to summon one Palu @ Ajaya Kumar Barik, the younger brother of deceased Kalu @ Bijay Kumar Barik filed on behalf of the prosecution, came to be allowed.

  2. Mr. Sangam Kumar Sahoo, Learned Counsel for the Petitioner has sought to assail the impugned order dated 13.09.2010, on the ground that the impugned order suffers from error of record and non-application of judicial mind to the ratio of various cited decisions, in the context of the facts and circumstances of the present case and, therefore, is liable to be set aside.

    Mr. Sahoo, submitted that the Petitioner is facing trial for the alleged offence under Section 302/34 I.P.C. in the court of Additional Sessions Judge, Fast Track Court, Athagarh in S.T. Case No. 33 of 2006. During trial, the prosecution has examined 12 witnesses and the defence has examined one witness. After conclusion of evidence from both the sides, arguments were heard and case was posted for judgment on 13.08.2010. On that day i.e. 13.08.2010 the Additional Public Prosecutor prayed for time to argue the case and the case was adjourned to 18.08.2010. Thereafter it was adjourned again to 23.8.2010. On 23.08.2010, a petition under Section 311 Code of Criminal Procedure was filed by the prosecution seeking to summon one Palu @ Ajay Kumar Barik, to record his evidence. The accused-Petitioner filed their objections to such petition. The trial court allowed the petition under Section 311 Code of Criminal Procedure vide order dated 13.09.2010 which is the subject matter of challenge in the present petition.

    Mr. Sahoo strenuously urged that neither in course of investigation before the investigating agency nor during trial before the trial court, any material evidence has been brought on record to indicate that, Palu @ Ajaya Kumar Barik was ever a witness to the occurrence or that, he had ever disclosed any relevant facts before any witness. Hence, in the absence of any evidence obtained either in course of investigation or in course of the trial indicating as to whether the said Palu @ Ajaya Kumar Barik had any relevant knowledge, either of the occurrence or of any fact connected thereto, the application filed by the prosecution under Section 311 Code of Criminal Procedure and the impugned order dated 13.08.2010 allowing that application, at such a belated stage, when arguments were already made, highly prejudicial to the interest of the defence. He further submitted that the trial court in the impugned order observed that, it is best known to the erring investigating officer as to why he neither examined a material witnesses such as Palu @ Ajaya Kumar Barik under Section 161 Cr.P.C, nor cited him as a charge-sheeted witness in this case, whose evidence was essential for the just decision of the case. None of the witnesses have stated anything before the investigating officer in course of investigation nor in course of trial before the trial court as to whether Palu @ Ajaya Kumar Barik was ever a witness or that he had ever disclosed anything before them about possessing any knowledge regarding the alleged occurrence. Hence Mr. Sahoo, submitted that without such evidence, any direction to permit the prosecution to examine Palu @ Ajaya Kumar Barik is clearly an attempt to allow the prosecution as a second innings at trying to lead evidence in support of their case, that too at the fag end of the trial of the case. He further submitted that at this stage of the case, the prosecution as well as the defence have already revealed their respective stands during evidence in course of the trial and permitting the prosecution another opportunity to introduce a new witness at such stage, is wholly unknown to law as well as highly prejudicial to the defence of the accused.

  3. The case of the prosecution is that Urmila Pradhan (P.W. 2) had adopted Bijayalaxmi as her daughter about 25 years ago and had arranged her marriage with one Biswanath Barik. Bijayalaxmi had given birth two sons, namely, Kalu @ Bijaya Kumar Barik (deceased) and Palu @ Ajaya Kumar Barik (witness sought to be summoned). Though Bijayalaxmi was married and staying in her matrimonial house, her deceased son Kalu @ Bijaya Kumar Barik was staying in the house of his maternal grand mother, namely, Urmila Pradhan (P.W. 2) at Deulasahi. It is the further case of the prosecution that Urmila Pradhan had some land situated in the village-Machhia and she had given the said land to Laxman Patra (father of the present Petitioner) for carrying out agricultural operation. Laxman Patra's grand son, namely, Abhaya Patra (absconding accused) was staying in the house of Urmila Pradhan since his childhood but since he had became wayward, Urmila...

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