SMT. ANITA PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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.

(2.) 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 under Section 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.

(3.) 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 under Section 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.