The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4913 of 2024 Kanhu Charan Mishra @ Budha and others ..... Petitioners Represented By Adv. - Devashis Panda State Of Odisha -versus- ..... CORAM: Opposite Party Mr. C.M. Singh, ASC along with Mr. U.R. Jena, AGA
Decision
ORDER 08.09.2025 Order No. 08. 1. 2. This matter is taken up through Hybrid mode. Heard learned counsel for the Petitioner as well as learned counsel for the State. Perused the application as well as the prayer made therein. 3. By filing the present application under Section 528 of BNSS, (which is pari materia provision of Section 482 of Cr.P.C.), the learned counsel for the Petitioner seeks indulgence of this Court by exercising the inherent power of this Court to quash the order dated 22.07.2024 passed by the learned 4th Addl. Sessions Judge, Bhubaneswar in Crl. Trial Case No.50/12/113 of 2013/2010 Page 1 of 6. rejecting a petition filed for causing production of the Duty Register of the staff of Special Jail, Laxmisagar, Bhubaneswar to disprove the testimony of the P.W. Nos.2, 8, 9 & 31. 4. Mr. Panda, learned counsel for the Petitioner at the outset contended that the Petitioner is facing trial for commission of a crime punishable under Section 302 of IPC. He further submitted that in course of trial an application was moved under Section 341 of Cr.P.C. challenging order dated 31.07.2023 of the learned Addl. Sessions Judge Bhubaneswar in the present trial as well as the rejection of the petition under Section 340 of Cr.P.C., which was filed to conduct a criminal inquiry with regard to a false evidence allegedly adduced by P.W. Nos.2, 8, 9 & 31, namely, Subhakanta Mishra, Santanu Kumar Hota, Dharanidhar Sahu and Harisankar Purohit and to initiate a criminal proceeding against them for deposing falsely before the Court. Such petition having been rejected, the Petitioner had earlier approached this Court by filing CRLA No.1095 of 2023. A Coordinate Bench of this Court vide order dated 13.03.2024 disposed of the appeal by observing that it is needless to say that when the case is posted for argument, if the learned defence counsel argues regarding the non-acceptability of the evidence of the aforesaid four witnesses as eye witnesses to the occurrence, the learned trial Court shall deal with the same in accordance with law. Any observation made in that respect at this stage would not be proper. Accordingly, the appeal was permitted to be withdrawn by the Appellant with the observation made by the learned Coordiante Bench. 5. It is also pertinent to mentioned here that earlier the present Page 2 of 6. matter was before this Court in CRLMP No.879 of 2020. A Coordinate Bench, vide order dated 04.09.2020, observed that the recording of evidence has been closed and that the matter was posted for hearing, and in the aforesaid backdrop the CRLMP application was disposed of with a direction to the learned Addl. Sessions Judge, Bhubaneswar that in the event the recording of evidence is already closed and only hearing of the proceeding is pending, then the learned Addl. Sessions Judge, Bhubaneswar shall take effective steps for early hearing of the proceeding and dispose of the same in accordance with law, within a period of two months from the date of normal functioning of the Court. 6. This Court at this juncture observes that despite such direction by the learned Coordinate Bench vide order dated 04.09.2020, the hearing has not been concluded and the trial is still pending for finalization. 7. The present application arises out of an order dated 22.07.2024 passed by the learned 4th Additional Sessions Judge, Bhubaneswar rejecting a petition filed by the accused-Petitioner to cause production of the Duty Register of the Staff of Special Jail, Laxmisagar, Bhubaneswar. The same was required to disprove the testimony of the P.W. Nos.2, 8, 9 & 31. Mr. Panda, learned counsel for the Petitioner at this stage contended that the prosecution is heavily relying on the aforesaid witnesses in the trial. He further contended that those witnesses are all staff of the Special Jail, Laxmisagar, Bhubaneswar. It was specifically alleged that they were not on duty at the relevant point of time. Accordingly, an application was filed to call for the Duty Register to find out as to whether they Page 3 of 6. were on duty on the relevant date and time. Such application filed by the Petitioner has been rejected vide order dated 22.07.2024 at Annexure-1 to the application. 8. On a perusal of the impugned order dated 22.07.2024, this Court observes that the application of the accused-Petitioner has been rejected essentially on the ground of delay. The learned trial Court has also observed that by filing the present application the accused-Petitioner is trying to prolong the trial unnecessarily as recording the evidence of witnesses is over since long. On such ground, the application of the Petitioner has been rejected. 9. At this point, it is alleged by Mr. Panda, learned counsel for the Petitioner at this stage that the learned trial Court has not given any specific reason as to why such application has been rejected. 10. Learned counsel for the State on the other hand supported the order dated 22.07.2024 at Annexure-1 passed by the learned trial Court. Learned counsel for the State contended that the learned trial Court has not committed any illegality in rejecting the petition of the accused-Petitioner to call for the Duty Register. He further submitted that the trial arises out of an occurrence that had taken place in the year 2009 and that the recording of evidence of the witnesses is over long since and that the matter is lingering for hearing for several years. Learned counsel for the State further submitted that the filing of the present application is nothing but an attempt to delay the trial unnecessarily. In view of the aforesaid fact, learned counsel for the State contended that the learned trial Court has not committed any illegality at all and that the impugned order dated 22.07.2024 at Annexure-1 does not call for any interference of this Court in Page 4 of 6. exercise of its inherent power under Section 482 of Cr.P.C. 11. Having heard the learned counsels appearing for the respective parties, on a careful examination of the background facts, further on a close scrutiny of order dated 22.07.2024, this Court found that the application of the Petitioner to call for the Duty Register has been rejected by the learned trial Court on the ground of delay and with a finding that filing of such an application is with the intention to delay the trial unnecessarily. On a careful examination of the materials on record, this Court observes that by filing of the application the Petitioner seeks to call for the Duty Register to establish that the P.W. Nos.2, 8, 9 & 31 on which the prosecution relies heavily, were not on duty on that particular date. It is needless to mention here that the onus is on the prosecution to establish the case of the prosecution by adducing cogent and unimpeachable evidence. Accordingly, the onus is also on the prosecution to prove that a particular witness was present at the spot of occurrence by adducing evidence. In the event the prosecution fails to establish the same or, any document which is relevant to establish the aforesaid facts has been withheld, the trial Court can always draw inference against the prosecution. Thus, it is clear that if a particular piece of evidence which is relevant has been withheld for whatever reason, the defence can always take advantage of such withholding. It is open to the defence to take such a ground during hearing which shall be duly considered by the learned trial Court. In view of the aforesaid analysis, this Court is of the view that the impugned order does not call for any interference by this Court, at this stage. Moreso, keeping in view that fact that the hearing has been continuing since 2020, while disposing the present application, this Page 5 of 6. Court further directs the learned trial Court to make every endeavor to conclude the trial as expeditiously as possible. 12. With the aforesaid observation/direction, the CRLMC application stands disposed of. S.K. Rout ( Aditya Kumar Mohapatra ) Judge Page 6 of 6. Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Sep-2025 20:53:25