ISWAR SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The accused persons have filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), challenging the legality of order dated 22-4-1996 passed by the Additional Sessions Judge, Bolangir, in Sessions Case No. 51/18 of 1995 dispensing with the examination of the Investigating Officer.

(2.) The facts giving rise to the present application are as follows: The accused persons are facing trial under Section 302/34, Indian Penal Code. After examination of other prosecution witnesses, Chintamani Sahu, who was one of the Investigating Officer in the case was to be examined as a prosecution witness on 2-2-1996, but the said Investigating Officer after having received the summons to appear before the Court, sought for an adjournment. On 16-2-1996, a petition was filed on behalf of the accused persons stating that the Investigating Officer should be examined as a witness enabling the accused persons to cross-examine him. On the very day a Memo was filed on behalf of the Additional Public Prosecutor indicating that the court should enforce the attendance of the Investigating Officer by taking appropriate legal steps under the Code of Criminal Procedure. The trial Court evidently being satisfied regarding the desirability of examining the said Investigating Officer directed for issuing bailable warrant of arrest against the said Investigating Officer to ensure his attendance for being examined as a witness. Though it is not clear as to whether bailable warrant had been executed or not, it appears that the Investigating Officer has not attended the court on any subsequent date. Ultimately, on 22-4-1996, the trial Court passed an order to the following effect: All the accused persons are present. 1.0. Chintamani Sahu is absent. In this connection the order sheets will explain how the Court has taken all possible steps to procure the attendance of 1.0. Ultimately warrants were issued against him, but of no use. Hence the evidence of the 1.0. is dispensed with. Prosecution case is closed. The learned counsel for defence again pointed out in his petition dated 16-2-1996, but in that respect order was passed on the very day. Hence, prosecution case is closed. Put up tomorrow for the accused statement.

(3.) The accused petitioners have approached this Court seeking for a direction to the trial Court to take coercive steps against the said Investigating Officer to enforce his attendance as a witness. The learned Standing Counsel relying upon the Memo filed by the Additional Public Prosecutor in the trial Court also submitted that the Investigating Officer should be examined as a witness, as otherwise, adverse inference may be drawn against the prosecution case.