BACHATAR SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, an accused inG. R. Case No. 3213 of 1987 in the Court of the Judicial Magistrate, First Class, Bhubaneswar, for alleged commission of an offence under S. 279/ 304-A, I. P. C. has challenged the order of the Magistrate directing the defence counsel to furnish the correct address of P. W. 1.

(2.) The accused-petitioner filed an application under S. 311, Cr. P. C. to recall P. W. I and P. W. 4. The learned Magistrate, on perusal of the evidence of P. W. 1, having found that the cross-examination has not been effectively done and there is every chance that the defence may be prejudiced if P. W. 1 is not recalled for further evidence by the defence specially when the present advocate was engaged much after the date of examination of P. W. 1 and as such had no occasion to cross-examine properly. The application was allowed vide order dated 7-7-94 and summons were directed to be issued on P. W. 1 and P. W. 4 for further examination fixing it to 29-7-94.It appears from the order of the learned Magistrate dated 9-5-95 that summons issued to witness Dilip Rao (P. W. 1) were returned back with report that he is not available in the address and his present whereabout was not known. It is further noted that P. W. 1 was examined, cross-examined and discharged on 221-92 and on the prayer of the accused, P. W. 1 was again summoned for his further cross-examination, The learned Magistrate in the circumstances has directed the defence counsel to furnish the present correct address of P. W. 1 by 19-5-95, whereafter the summons would be issued to him and this direction is under challenge in this petition. It further transpires from the order-sheet dated 20-6-95 that the learned Magistrate closed the prosecution case, since the defence could not furnish the correct address of P. W. 1 as directed earlier.

(3.) Mr. B. S. Mishra, learned counsel for the accused-petitioner submits that the defence counsel was engaged much after the examination of the witnesses and therefore excepting the address in the case diary, there is no other address available to the defence counsel to furnish the present address of the witnesses in court. It is the submission of Mr. Misra that the direction of the learned Magistrate to the defence counsel to furnish the correct address of P. W. 1 is palpably illegal inasmuch as there is no reason or rhyme as to why the defence counsel would be in a position to furnish the address of a prosecution witness when the prosecution failed in their attempt to secure the attendance of the witness.