ARJUNA KUMAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) ORDER :- The question Involved in this revision is small but ticklish no with regard to the interpretation of Sub-Sec. (8) of S.173 Criminal P.C. This question arises in the following circumstances. The petitioner who is a Forest Range Offices is being tried by the Special Judge (Vigilance), Sambalpur in T. R. Case No. 6 of 1983 under S.5(2) read with S.5(1)(e), of the Prevention of Corruption Act. The allegation against the petitioner is that he is in possession of assets disproportionate to his known sources of income. during the period 1-7-1966 to 3-12-1976, the disproportion being to the tune of Rs. 58,751.00. The FIR was lodged on 16-1-1982, and the charge-sheet was filed before the Magistrate on 16-3-1983. The Magistrate then forwarded the case to the Special Judge for disposal in accordance with law on the same day i.e. on 16-3-1983. The learned Special Judge took cognisance and issued summons on 16-3-1983. The accused appeared before the Special Judge on 15-4-1983. The Special Judge framed charges in the case on 8-9-1983 and the trial began on 31-10-1983. On 2-1-1984, the D.S.P. (Vigilance) submitted a list of documents and a supplementary list of witnesses before the learned Special Judge intending them to be examined in the trial. By that time, the prosecution had already examined 17 witnesses and exhibited 15 documents. The accused filed an objection objecting to the supplementary list of witnesses and documents submitted by the D.S. P. (Vigilance). After hearing the counsel for the prosecution as well as for the defence, the learned Special Judge, by the impugned order dated 23rd of April, 1984, rejected the objection of the defence and directed that the further report together with the further evidence, oral and documentary collected by the Investigating Officer may be treated as evidence collected by the Investigating Officer during further investigation under S.173(8), Criminal P.C, and would be treated as a report as contemplated under Sub-Ss. (2) to (6) S.178. The accused, however, was given the liberty to further cross-examine the witness already examined in the case if he is so advised. It is this order of the learned Special Judge which is being impugned in the present revision.

(2.) Mr. P.K. Misra, the learned counsel appearing for the petitioner, contends that a bare reading of Sub-S. (8) of S.173, Criminal P.C., would show that a further report can only be forwarded to the "magistrate" and certainly not to the Special Judge or Sessions Judge, as the case may be, in course of trial and, therefore, the Special Judge in the present case has no jurisdiction to entertain the further report and the evidence collected by further investigation. The learned counsel alternatively contends that even if it is held that the word "magistrate" used in Sub-S. (8) would also include the Sessions Judge or the Special Judge, yet in the facts and circumstances of the present case where the prosecution has already examined large number of witnesses and has exhibited large number of document and the trial is at its fag end, it would be wholly inequitable and would not be in the interests of justice to allow the prosecution to lead further evidence on the basis of certain new materials and, therefore, the learned Special Judge erred in law in permitting the prosecution to lead further evidence in the case. Both the contentions require a careful examination of the relevant provisions of the Code.

(3.) It would be appropriate to extract S.173 of the Code at this stage :-