Sarbeswar Panda Vs. State of Orissa - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the sametrial. it is well-settled that no court can compel the accused to give evidence unless there is compliance with section 315(1)(a) i. he can be a witness for the prosecution as well as for the defence. their lordships discussing the concept of section342 of the code observed thus :what is the meaning of the last sentence of section 342, no oath shall be administered to the accused'? the decisions can best be explained by holding that by 'the accused' is meant a person over whom the magistrate or other court is exercising jurisdiction; and on the whole we think this restricted meaning best suits the context. 435, wherein it has been held as follows :right of the court to deny an opportunity for defence evidence is limited to cases where it is satisfied, for reasons to be recorded in writing, that the application should be refused on the groundthat it is made for the purpose of vexation or delay for defeating the ends of justice. xxx xxx xxxthe discretion in refusing the chance will have to be exercised judicially for the advancement of justice and fair trial even if cases coming under sub-section (3) ofsection 233 as well as sub-section (2) of section 243 and the proviso. ' 7. apart from the aforesaid decision it is well settled in law that an accused is entitled to a fair trial. the court need not give excessive indulgence but the dalineation of the matter should be in such a manner so that me concept of fair trial is not defeated. no citizen should go away with the feeling that he could not get justice from the court because the other side was socially, economically or politically powerful and could manipulate the legal process.dipak misra1. invoking the inherent jurisdiction of this court under section 482 of the cods of criminal procedure (hereinafter referred to as 'thecode') 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 1983whereby the petition filed by him for grant of opportunity to adduce further evidence on behalf of the defence was rejected.2. the essential facts which have laid to the filing of the present application are that on the basis of p. r. no. 12/92/93, 2 (a) cc no 150 of 1992 was instituted against the petitioner and one bipin behari behera undersection 21 of the narcotic drugs and psychotropic substances act, 1985 in the court of sdjm. bhubaneswar, which ultimately gave rise to s. t. no. 38/207 of 1983 in the court of additional sessionsjudge, bhubaneswar. by order dated 13-7-1995, the learned trial judge acquitted the said bipin behari behera under section232 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 assulted by pradip ranjan potnaik and the learned sdjm, bhubaneswar.it was mentioned in the said petition that the revenue inspector and bipin behari behera wore present incourt. 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 forsummoning the sdjm, bhubaneswar as a defence witness in rejected. call on 12-9-1995 for defence evidence when defence is to produce his defence witness bipinbehera, 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 -10-1995 and the case was posted for judgment -o 28-10-1995. on 26-10-1995 an advance petition was filed by the accused through me 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 held re-submitted through the jail authorities on 25-10-1995. 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 sdjm, 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 dw 1 but bipin behera was not examined. the further submission of sri mohanty is that for non-examination of said bipin behari beherd 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. 4. refuting the submission of sri mohanty, the learned additional standing counsel has contended that adequateopportunity was given to the petitioner but he has not availed the same and at a belated stage it is not open to him to re-open the trial. it is further urged by him that no prejudice has been caused to the accused by non-examination of the said bipin behera. it is also canvassed that the said person being a co-accused cannot be summoned as a witness. 5. the question that falls for consideration is whether the petitioner is entitled in law to summon bipin behari behera, who was arrayed as a co-accused with him, as a witness. it has been vehemently urged by mr. das on behalf of the prosecution that the orders passed by the learned trial judge summoning the said witness is not clear and it cannot be inferred that he had really allowed the application. he has also proposed that an accused cannot be summoned as a witness against his desire or willingness. to appreciate this proposition, it is essential to refer to sub-section (1) of section315 of the code. the said provision reads as follows : '315. accused person to be competent witness-(1) any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same tria: provided that-(a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the sametrial.'the aforesaid provision postulates that the accused has the option of examining himself as a witness and to tender his evidence on his own behalf or on behalf of any person charged together with him to disprove the charges made against him or any other person who has been charged together with him at the same trial. it is well-settled that no court can compel the accused to give evidence unless there is compliance with section 315(1)(a) i.e., a request in writing by the accused. i have referred to the aforesaid provision because mr. das had referred to the same and had impressed upon this court to take note of the fact that there has been no request on bipin bahara, the co-accused. the submission possibly would have carried weight if said bipin behera, in actuality, would have remained as a co-accused at the time of filing of the application. as indicated earlier, the said accused was acquitted under section 232 of the coda. once he has been acquitted, he ceases to be a co-accused and there is no impediment to summon him as a witness. he can be a witness for the prosecution as well as for the defence. in the case of queen empress v. mona puna : ilr (1892) 16, bombay 661. the bombay high court accepted the evidence of a person as that of a competent witness though he was illegally discharged by the police. their lordships discussing the concept of section342 of the code observed thus :'what is the meaning of the last sentence of section 342, 'no oath shall be administered to the accused'? the decisions can best be explained by holding that by 'the accused' is meant a person over whom the magistrate or other court is exercising jurisdiction; and on the whole we think this restricted meaning best suits the context.' in the case of mohesh chunder kopali v. mohesh chunder dass, 10 clr 553, two persons were arrayed as accused in a complaint case. the learned magistrate issued process against one. the defence requested to examine the other person against whom no process was issued as a witness for the defence. it was held thereinthat the said person was a competent witness. in this context, reference may be made to a decision rendered in the case of sukdev tewari v. emperor, 1909(1) cri lj 484, wherein the calcutta high court ruled that until the accused who pleads guilty is convicted or acquitted is still the accused person and, therefore, is not a competent witness. from the aforesaid analysis it is luminously clear that a co-accused after being discharged or acquitted ceased to be an accused and, therefore, the restrictions provided under section315 of the code do not apply to him. he, in fact, ceases to foe a co-accusedand, therefore, he can be summoned as a witness. 6. in view of the determination made above that said bipin behera can be summoned as a witness on behalf of the defence, the residual question that remains to be answered is whether in the facts and circumstances of the present case the trial judge was justified in-rejecting the prayer of the petitioner. though mr. das his emphatically submitted that the court below had not allowed the application of the accused for summoning said bipin behera, i have not been able to persuade myself to agree with the submission of the addl. standing counsel. i am of the considered opinion that the learned trial judge had initially allowed the application but later on possibly under some-mistake or confusion defence was closed after examining the revenue inspector alone. be that as it may, the said aspect has lost its significance because after argument was closed an application was filed by the accused himself to call for the said person as a witness. in this context i may refer to section233 of the code. sub-section (3) of the said section reads as follows:- '233, entering upon defence-x x x(3) if the accused applied for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the judge shall issue such process unless he considers, for reasons to be recorded that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.'from the factual backdrop it cannot be said that the accused has filed the application for vexation or delay or for defeating the ends of justice. the discretion vested in court to reject the application under aforesaid provision can be exercised if the court is of the view that the said application has been filed with ulterior or oblique motive for the purpose of defeating the ends of justice or for the reasons which are analogous thereto. in this contex, i may profitably refer to the decision in the case of t. n. janardhanan pillai v. state, 1992 crl l. j. 435, wherein it has been held as follows :'right of the court to deny an opportunity for defence evidence is limited to cases where it is satisfied, for reasons to be recorded in writing, that the application should be refused on the groundthat it is made for the purpose of vexation or delay for defeating the ends of justice. xxx xxx xxxthe discretion in refusing the chance will have to be exercised judicially for the advancement of justice and fair trial even if cases coming under sub-section (3) ofsection 233 as well as sub-section (2) of section 243 and the proviso.' 7. apart from the aforesaid decision it is well settled in law that an accused is entitled to a fair trial. he who faces a criminal prosecution has to be dealt with complete fairness. the court need not give excessive indulgence but the dalineation of the matter should be in such a manner so that me concept of fair trial is not defeated. justice should not only be done but also appear to have been done. in this context, i may refer to the case of sunil kumar pal v. phota shaih and ors., air1984 sc 1591, wherein the apex court expressed thus :'.........it is imperative that in order that people may not lose faith in the administration of criminal justice, no one should be allowed to subvert the legal process. no citizen should go away with the feeling that he could not get justice from the court because the other side was socially, economically or politically powerful and could manipulate the legal process. that would be subversive of the rule of law.'in the instant case, i am of the view if an opportunity is not granted to the petitioner for summoning the witness in question it would amount to travesty of justice.8. the other prayer of the petitioner is for grant of permission for change of advocate. as the court below had refused to exercise the discretion the said aspect has not beenanalyed in proper perspective. if the accused still desires to change his counsel he would make a fresh prayer before the trial judge who shall proceed to deal with the matter in accordance with law.9. as a consequence, the order dated 23-10-1995 is set aside and the learned trial judge is directed to summon bipin behera as a defence witness and proceed with the trial. as the matter is pending since long the trial judge should dispose of the same as expeditiously as possible.10. resultantly, the criminal misc. case is allowed to the extent indicated above.