Gadadhar Jena vs. State Of Odisha(Vig.)

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

Heard learned counsel for the petitioner as well as learned A.S.C. for the Vigilance Dept. Perused the 482 Cr.P.C. application as well as the impugned order dated 07.02.2024. 3. The petitioner has approached this Court by filing the present application under Section 482 Cr.P.C. challenging order dated 07.02.2024 passed in T.R. No.61 of 2006 by the Special Judge, Vigilance, Bhubaneswar, Khurda challenging the order dated 07.02.2024 passed in T.R. No.61 of 2006 thereby the learned Special Judge, Vigilance, Bhubaneswar has rejected an application filed by the petitioner under Sections 91 & 311 Cr.P.C.

In his petition under Section 91 Cr.P.C. the petitioner has prayed for production of the documents like Way bills and C-forms and the .

Learned counsel for the petitioner at the outset submitted that the production of documents like Way bills and C-forms and the connected registers as well as the assessment records of the year 2005-2006 are highly essential for a just adjudication of the dispute involved in the trial. He further contended that further cross examination of the P.W.12 i.e. the I.O. of the case is also extremely important to rebut the allegation of the prosecution with regard to the search and seizure that had taken place on the 19th/ 20th May, 2005. He further contended that the basis of the demand, as alleged by the prosecution in the present case, is supply of Way bills and C-forms. He further contended that in order to rebut the evidence of the prosecution, the production of the aforesaid Way bills and C-forms as well as connected registers is extremely crucial. It was also contended that further cross examination of the I.O., in the context of the search, is also necessary to establish the defence plea.

Learned Additional Standing Counsel for the Vigilance Dept. on the other hand contended that all those records have been filed before the Special Court in connection with a GST case and as such, the records are available with the court and that the petitioner can obtain a certified photocopy of such documents. With regard to the assessment record, learned A.S.C. for the Vigilance Dept. submitted that the petitioner wants to call for those records only with the intention to prolong the trial in the present case which has already been delayed by more than one and half decades at this point. On such grounds, learned .

On perusal of the impugned order, this Court further observes that the Way bills and C-forms can be obtained by the petitioner by applying for the certified photocopy of such documents. So far the register relating to the issuance of such Way bills and C-forms is concerned, learned A.S.C. for the Vigilance Dept. submitted that he has no objection to the same and can very well produce the same before the trial court in the event the same is called for by the learned Special Judge, (Vigilance), Bhubaneswar.

With regard to application under Section 311 Cr.P.C. to recall the I.O. (P.W.12 in this case), this Court observes that the said I.O. is a witness and his further cross examination at the instance of the petitioner is highly necessary. While observing so, this court is of the view that the P.W.12 should have been cross examined at the relevant point of time, however, due to latches on the part of the defence the P.W.12 has not been properly cross examined in the present case. On further scrutiny of the facts of the present case, this Court is of the view that unless further examination of the P.W.12 is allowed, the petitioner is likely to be prejudiced in the trial. However, the latches on the part of the petitioner cannot be ignored by this court at this juncture. This Court .

In view of the aforesaid analysis of the materials on record, as well as keeping in view the demand of the petitioner for production of records and further cross-examination of P.W.12, this Court is inclined to modify the order dated 07.02.2024 to the extent that the department is directed to produce the registers pertaining to the Way bills and C- forms of the year 2004-05 & 2005-06 pertaining to the present petitioner. Moreover, the learned Trial Court shall fix a specific date on which the P.W.12 shall appear for further cross examination, and the petitioner shall conclude his cross examination on the very same day without further prolonging the trial. However, it is made clear that prior to the cross examination, learned counsel for the petitioner shall file a questionnaire before the trial court. In such eventuality, the learned trial court shall allow the further cross examination of the P.W.12 in the manner as has been directed hereinabove subject to payment of a cost of Rs.2,000/-(Rupees Two Thousand) by the present Petitioner. Furthermore, while disposing of the present application, liberty is given .

With the aforesaid observations, the CRLMC application stands disposed of. ( A.K. Mohapatra ) Judge Anil .