GANESH SWAIN Vs. SABITRI SWAIN ALIAS SANJU

JUDGEMENT

(1.) INVOKING inherent jurisdiction of this Court under Section 482, Cr.P.C, the petitioner, who is an accused in G.R. Case No. 347 of 1996 pending in the Court of learned S.D.J.M., Puri, has approached this Court with a prayer to set aside the orders passed by the trial Court and confirmed by the revisional Court rejecting a petition filed by the accused -petitioner to summon a police officer as a witness on his behalf to prove the factum of marriage between him and opp. party No. 1.

(2.) OPPOSITE party No. 1 claiming to be the wife of the present petitioner had initiated a proceeding under Section 125 Cr.P.C. claiming maintenance for self and for her daughter (7 years old) alleged to have been born out of the wed -lock. The petitioner, at the other hand, denied the entire allegations as false. According to him, the child was not born out of wed -lock. He not only denied the father -hood, but also advanced an allegation that opp. party No. 1 had left his home and was having illicit relationship with some outsider and was conceived through him. Almost at the fag end of the trial, it appears a petition was filed before the trial Court by the petitioner to summon one Sri Sudam Charan Barik, the S.I. of Police who was the Investigating Officer of G.R. Case No. 347 of 1996 pending in the Court of the S.D.J.M., Puri as a witness to prove the factum of marriage. The said petition was rejected by the learned Magistrate mainly on the ground that the S.I. who was conducting investigation in the aforesaid G.R. Case had only recorded the statements and had no direct knowledge, th.us he is not a relevant witness. The said order, as stated earlier, was confirmed by the learned Addl. Sessions Judge, Puri in Criminal Revn. No. 32/83 of 1999. It appears that the petitioner once again repeated his prayer by filing a separate petition before the learned S.D.J.M. in G.R. Case No. 347 of 1996 and the learned S.D.J.M. by his order dated 5.3.2003, referring to the earlier two orders, rejected the petition. It was also observed by the learned S.D.J.M. that the case relates to the year 1996 and the same can be disposed of within six months.

(3.) FOR arriving at a right conclusion and for effectual adjudication of any dispute, the Court should not hesitate and/ or prevent any of the parties from examining the witness whose evidence appears to be essential for adjudicating the real issue in controversy or for the just decision of the case. If justice requires, the Court should exercise its power under Section 311 Cr.P.C. at any stage. It is pertinent to note that under Section 31 1 of the Code, the Legislature has used the word' 'may' and 'shall' in the same provision which means the Legislature did not leave it to the discretion of the Court to intrepret both the expressions. Reading of the section would lead to a conclusion that at any stage of inquiry, trial or other proceeding if the Court so requires, it 'may summon' any person as witness or examine any person in attendance, whereas it is mandatory for the Court to summon or recall any witness if his statement appears to be essential for the just decision of the case. In other words, if in order to arrive at a just and correct decision a witness has to be examined, it is mandatory for the Court to summon that witness. Interference of a Court always is to do justice in true sense. Once the Court is of the view that in order to have correct decision, examination or re -examination of a witness is essential, the Court shall have no option but to summon and re -examine that witness. Thus, the word 'shall' in the second clause is mandatory and imperative in nature and character and the word 'may' in the first clause, is directory. In short, under Section 311 of the Code, the power of the Court to examine a witness for a just decision of the case, cannot be curtailed in any manner or beyond any State so long as the Court is in the cession of the matter.