SATCHIDANANDA JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order passed by the learned Judicial Magistrate, First Class Banpur (in short, 'the JMFC') to take action in terms of Section 350 of the Code of Criminal Procedure, 1973 (in short, 'Cr. P.C.') is assailed in this application.

(2.) A brief reference to the factual aspects would suffice :

(3.) Learned counsel for the petitioner submitted that an elaborate show-cause reply was submitted indicating all relevant details and the petitioner has not remained absent without any reasonable or just excuse and was always willing to appear on any date fixed and in fact was examined on 17-5-1994. Learned counsel for the State on the other hand supported the action of the learned JMFC, and submitted that the petitioner had not indicated any acceptable reason for remaining absent. Section 350 Cr. P.C. is an enabling provision conferring jurisdiction on a Court to take cognizance of an offence committed in contempt of its authority. The Section has been enacted with the object of empowering a criminal Court to try a witness summarily for the disobedience of its summons. The power is necessary for the criminal Court to exercise control due to absence of witnesses in large number of cases without any justifiable reason. Such absence normally results in adjournment of the case causing prejudice to the prosecutor and the accused. Persons who are in service of the State should be more careful and vigilant in responding to summons issued by a Court. Observation of law of better and greater degree is required from them. Therefore, when the members in the Government service flout the process of the court and do not attend Court even on receiving summons duly communicated, it becomes the duty of the Court to take action to prevent recurrence thereof. Section 350 does not dispense with mens rea as an ingredient of the offence. Court has to consider the stand of the concerned witness and if it is found that without just excuse it has neglected in attending Court, necessary action has to be taken. Section 350 Cr. P.C. clearly authorises the criminal Court to try witnesses summarily for disobedience of its summons. The legislative wisdom behind enacting such enabling provision is quite apparent. The said Section is enacted with the sole and avowed object of arming the criminal Court with appropriate power to see that it is not rendered helpless and placed at mercy of recalcitrant witnesses. The necessity and advisability of the positive participation of Courts in trial proceedings finds support from the legislative wisdom as reflected in (i) Section 311 Cr. P.C., which parties to power to summon material witnesses or to examine person present, (ii) Section 350 Cr. P.C. which pertains to summary procedure for punishment for non-attendance by witnesses in obedience to summons to attend the Court (iii) Section 174 of the Indian Penal Code, 1860 (in short 'IPC') pertains to non attendance in obedience to an order from public servant. Section 350 Cr. P.C. is a self-contained provision creating an offence and the machinery for the trial of such offence. It is thus a combination of a substantive provision creating an offence of a less serious nature and also a procedure for the trial of such an offence. Judicial procedure warrants that for doing ultimate justice bringing the witnesses before the Court for the purpose of examination is an absolute necessity and for that both the Court and the prosecuting agency have got to share the responsibility. Court must be that the prosecuting agency is kept under control, it keeps the witnesses present before it and the things are handled in such a way that the cause of justice ultimately does not suffer and a party does not get out of clutches of law on the ground of non-prosecution of defective prosecution and gain/unwarranted advantage.