BHAGABAN BEHERA Vs. MAHESWAR BEHERA AND ORS.

JUDGEMENT

(1.) THIS revision involves interpretation of Section 311 of the Code of Criminal Procedure and the scope, ambit and power of the Court thereunder to summon any person as a witness at any stage of any enquiry, trial or other proceeding under the Code. This point arises in the following circumstances.

(2.) DURING the night of 26 -10 -1976 a dacoity was committed in the house of the informant Petitioner in village Ghusuria. The dacoit severely assaulted the Petitioner causing a number of injuries on his person and decamped with cash of Rs. 5,000/ - and gold and silver ornaments. On 27.10.1976 at about 7 p.m. the Petitioner lodged a within report with the A.S.I., Rajkanika Out Post on the basis of which a formal F.I.R. was drawn up and investigation was commenced. Ultimately opposite parties 1 to 8 along with one Karnadev Naik and two others, out of whom one is dead, were put on trial for the offence under Section 395, Indian Penal Code in S.T. No. 1/1 of 1979 in the Court of the Assistant Sessions Judge, Kendrapara. As Kamadev Naik and another absconded, the case was split up and the opposite parties 1 to 8 are being tried as aforesaid. During investigation on the application of opposite party No. 1 his confusional statement was recorded on 20 -11 -1976.

(3.) IN the present sessions trial the Circle Inspector of Kamakhyanagar was examined as P.W. 21 on 10.8.1979 and he deposed that the said letter seized by him had been exhibited in Dhenkanal Sessions Trial No. 11 of 1978 and that Government Appeal No. 6 of 1979 arising therefrom was pending in High Court. On the basis of this evidence the Public Prosecutor filed a petition to call for the said letter from the High Court. This petition was rejected by the Assistant Sessions Judge by his order dated 10.8.1979 on the sole ground that it was filed at the close of the prosecution case. He, thereafter, posted the case to 13.8.1979 for accused statement and after two dates posted to 11 -9 -1979 for defence.