SARBESWAR PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Invoking the inherent jurisdiction of this Court under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as the CodeT) the petitioner calls in question the defensibility of the order passed by the learned Additional Sessions Judge, Bhubaneswar in S.T. No. 38/207 of 1983 whereby the petitioner filed by him for grant of opportunity to adduce further evidence on behalf of the defence was rejected.

(2.) The essential facts which have led to the filing of the present application are that on the basis of P.R. No. 12/ 92/93. 2(a) C.C. No. 150 of 1992 was instituted against the petitioner and one Bipin Behari Behera under Sec. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in the Court of S.D.J.M., Bhubaneswar, which ultimately gave rise to S.T. No. 38/207 of 1983 in the Court of Additional Sessions Judge, Bhubaneswar. By order dated 13-7-1995, the learned trial Judge acquitted the said. Bipin Behari Behera under Sec. 232 of the Code. However, he recorded a finding that the trial should proceed as far as the present petitioner was concerned and accordingly adjourned the matter to 20th of July. 1995 directing production of the petitioner on the said date. The case proceeded against the petitioner and after closure of the prosecution case on 18-8-1995 a memorandum was filed indicating that the accused did not want to adduce any evidence. However, on 22-8-1995 a petition was filed that the said memo was filed without consulting the counsel. He filed a petition to examine the Revenue Inspector to prove the spot and one Bipin Behari Behera who had been assaulted by Pradip Ranjan Patnaik and the learned S.D.J.M., Bhubaneswar. It was mentioned in the said petition that the Revenue Inspector and Bipin Behari Behera were present in Court. The said petition was dealt with by the learned trial Judge who partly allowed the application. It is essential to refer to the relevant portion of the said order: Prayer for examining Bipin Behari Behera. Revenue Inspector as a defence witness is allowed and prayer for summoning the S.D.J.M., Bhubaneswar as a defence witness is rejected. Call on 12-9-1995 for defence evidence when defence is to produce his defence witness Bipin Behera. Revenue Inspector. On 12-9-1995, one Bipin Behari Choudhury was examined. Cross examined and discharged and evidence on behalf of defence was closed. The matter was posted for argument and was argued on 1-10-995 and the case was posted for Judgment to 2810-1995. On 26-10-1995 an advance petition was filed by the accused through the Superintendent of Special Jail, praying to allow him to engage another Advocate for re-argument. He had also filed a memo that he wanted to change his Advocate as there had been non- examination of Bipin Behera who had been his co-accused. It has been further indicated therein that the said memo was filed on 21-10- 1995 but as directed by the Court he had re-submitted through the jail authorities on 26-10-1995. The Court below referring to the various previous, orders by order dated 26-10-1995 rejected the prayer of the accused.

(3.) Sri Y. Mohanty, learned counsel appearing for the petitioner has contended that in the petition filed by the accused on 22-8-1995 he wanted to examine the Revenue Inspector to prove the spot and Bipin Behera apart from the learned S.D.J.M., Bhubaneswar and the said petition was allowed indicating the name of Bipin Behera but the learned trial Judge possibly under the impression that Bipin Behera and the Revenue Inspector is one person though allowed the same indicating the name of Bipin Behera, only Bipin Behari Choudhury was examined as D.W. 1 but Bipin Behera was not examined. The further submission of Sri Mohanty is that for non-examination of said Bipin Behari Behera the petitioner had been seriously prejudiced and the concept of fair trial had been frustrated. The learned counsel for the petitioner has also highlighted that there is no reason to deny the opportunity to the petitioner to summon the said Bipin Behera as a witness as there is no vexatious attempt by the accused to procrastinate the trial, but on the contrary the same shall subserve the cause of justice.