Ganesh SwaIn Vs. Sabitri SwaIn Alias Sanju and anr. - Court Judgment

A.S. Naidu, J.

1. Invoking inherent jurisdiction of this Court under Section 482, Cr.P.C, the petitioner, who is an accused in G.R. Case No. 347 of 1996 pending in the Court of learned S.D.J.M., Puri, has approached this Court with a prayer to set aside the orders passed by the trial Court and confirmed by the revisional Court rejecting a petition filed by the accused-petitioner to summon a police officer as a witness on his behalf to prove the factum of marriage between him and opp. party No. 1.

2. Opposite party No. 1 claiming to be the wife of the present petitioner had initiated a proceeding under Section 125 Cr.P.C. claiming maintenance for self and for her daughter (7 years old) alleged to have been born out of the wed-lock. The petitioner, at the other hand, denied the entire allegations as false. According to him, the child was not born out of wed-lock. He not only denied the father-hood, but also advanced an allegation that opp. party No. 1 had left his home and was having illicit relationship with some outsider and was conceived through him. Almost at the fag end of the trial, it appears a petition was filed before the trial Court by the petitioner to summon one Sri Sudam Charan Barik, the S.I. of Police who was the Investigating Officer of G.R. Case No. 347 of 1996 pending in the Court of the S.D.J.M., Puri as a witness to prove the factum of marriage. The said petition was rejected by the learned Magistrate mainly on the ground that the S.I. who was conducting investigation in the aforesaid G.R. Case had only recorded the statements and had no direct knowledge, th.us he is not a relevant witness. The said order, as stated earlier, was confirmed by the learned Addl. Sessions Judge, Puri in Criminal Revn. No. 32/83 of 1999. It appears that the petitioner once again repeated his prayer by filing a separate petition before the learned S.D.J.M. in G.R. Case No. 347 of 1996 and the learned S.D.J.M. by his order dated 5.3.2003, referring to the earlier two orders, rejected the petition. It was also observed by the learned S.D.J.M. that the case relates to the year 1996 and the same can be disposed of within six months.

3. Law is well settled that any Court at any stage of any inquiry, trial or other proceeding under the Code, of Criminal Procedure, can summon any person as a witness, though not summoned as a witness earlier, if his evidence appears to the Court to be essential for a just decision of the case. This power however is to be exercised with discretion. It is no more res integra that while deciding a case, not only justice is to be done, but it should appear to have been done.

4. For arriving at a right conclusion and for effectual adjudication of any dispute, the Court should not hesitate and/ or prevent any of the parties from examining the witness whose evidence appears to be essential for adjudicating the real issue in controversy or for the just decision of the case. If justice requires, the Court should exercise its power under Section 311 Cr.P.C. at any stage. It is pertinent to note that under Section 31 1 of the Code, the Legislature has used the word' 'may' and 'shall' in the same provision which means the Legislature did not leave it to the discretion of the Court to intrepret both the expressions. Reading of the section would lead to a conclusion that at any stage of inquiry, trial or other proceeding if the Court so requires, it 'may summon' any person as witness or examine any person in attendance, whereas it is mandatory for the Court to summon or recall any witness if his statement appears to be essential for the just decision of the case. In other words, if in order to arrive at a just and correct decision a witness has to be examined, it is mandatory for the Court to summon that witness. Interference of a Court always is to do justice in true sense. Once the Court is of the view that in order to have correct decision, examination or re-examination of a witness is essential, the Court shall have no option but to summon and re-examine that witness. Thus, the word 'shall' in the second clause is mandatory and imperative in nature and character and the word 'may' in the first clause, is directory. In short, under Section 311 of the Code, the power of the Court to examine a witness for a just decision of the case, cannot be curtailed in any manner or beyond any State so long as the Court is in the cession of the matter.

5. In the case at hand, learned counsel for the accused petitioner has set up a plea that in fact he is not the father of opp. party No. 2. Ends of justice and equity warrants that before arriving at a conclusion as to whether the petitioner is liable to pay maintenance to opp. party No. 2 or not. it has to be determined as to whether opp. party No. 2 is the daughter of opp. party No. 1 begotten throughthe petitioner.

6. After hearing learned counsel for the parties and after going through the materials available, I feel that for a just decision of the case and for effectual adjudication of inter se dispute, ends of justice and equity demands that an opportunity should be given to the petitioner to examine some of the witnesses in exercise of the power conferred under Section 311 Cr.P.C. But then, after hearing the counsel. I am satisfied that the Courts below have not committed any irregularity in rejecting the petition . filed by the petitioner to examine the S.I. of police who conducted the investigation in G.R. Case No. 347 of 1996 as he has no personal knowledge and the finding of the Court below to'that extent is confirmed. However, in the interest of justice, as requested by the learned counsel for the petitioner, I direct that the accused- petitioner shall be permitted to examine three witnesses, namely, Harihar Pradhan. Arjuna Swain and Jadu Swain at his own cost. He shall be given only two opportunities to make the aforesaid three witnesses available in Court to give evidence. If he fails to avail such opportunity, it would be open for the Court below to proceed with the case with the available materials. It is further directed that out of the three witnesses. Jadu Swain, who is the father of the petitioner, shall be produced before the Court on 30.4.2003 and the Court below shall permit examination of said Jadu Swaia on the said date or on any other day convenient to it. It is also directed that the petitioner shall produce the other two witnesses on or before 8.5.2003. At the cost of repetition, it is once again reiterated that if the petitioner fails to avail the opportunity and does not produce the aforesaid three witnesses at his own cost, within the time stipulated, the Court below shall proceed with the case. It is further directed that in case the evidence of aforesaid three witnesses is recorded, liberty should be given to the opr- party to cross-examine and file such petition which is otherwise permissible under law which will be decided on its own merit.

With the aforesaid observations and directions, the criminal Misc. case is disposed of.