Decided on July 24,1973

Gouranga Charan Bhatta Appellant
Basanta Kumar Swain And Anr. Respondents


G.K. Misra, J. - (1.) THIS revision is directed against the order dated 5 -4 -1973 passed by the learned Sub -Divisional Magistrate, Angul. By this order he has disallowed Sri G.B. Das, Advocate from appearing in the case to assist the C.S.I. He has also rejected the prayer of the prosecution to examine certain witnesses and to exhibit certain documents.
(2.) TO appreciate the legality of this order in the appropriate manner, it is necessary to state the facts in detail. The informant 's case is that on 17 -6 -1970 the accused entered into an agreement with him whereby he would sell his truck O.R.D. No. 551 to the accused for Rs. 13, 000/ -. Out of this amount, Rs. 2, 859/ - was paid in advance and the balance was agreed to be paid within a week. The truck remained with the informant On 13 -7 -1970 the accused executed a Hire Agreement (Ext. 1) as the contract for sale did not mature by then on account of the failure of the accused to arrange the balance consideration. The advance that was paid under the agreement for sale was to be adjusted towards hire charges. On 8 -4 -1971 the informant got back the truck as the accused failed to pay hire charges which had fallen due. The informant thereafter plied his own truck through his driver Tankadhar Mohapatra. The truck was being kept in front of the house of Tankadhar Mohapatra. On 10 -6 -1971 the truck was stolen from the front of the house of the informant 's driver. On 11 -6 -1971 information was lodged against the accused by the informant p.w. 6 on the basis of which a case under Section 379, Indian Penal Code was registered. On 13 -12 -1971 the charge sheet was submitted. On 14 -8 -1972 evidence was taken. On 7 -9 -1972 Shri Benudhar Das p.w. 5, an Advocate of Angul Bar was examined and cross -examined as he was an attesting witness to Ext. 1. On 7 -3 -1973 all the witnesses were ordered to be summoned through Court. No separate set of summons appears to have been made over to the prosecution as ordered on that date. A petition was filed by the C.S.I. to summon three witnesses on the ground that their evidence was material and essentially necessary for the prosecution. Those witnesses are (1) Niranjan Nanda, Agricultural Overseer who was a neighbour of the informant 's driver in front of whose house the truck was being kept on 10 -6 -1971 and for two months before that date; (2) Rabindranath Naik to prove an affidavit dated 17 -6 -1971 sworn by the accused in the case in which the accused admitted to have entered into the agreement dated 13 -7 -1970; and (3) Ramesh Behera, a driver who had brought back the truck on behalf of the informant on 8 -4 -1971 from the accused on his failure to pay the hire charges. Of these three witnesses, two had not been examined by the I.O. and the first one though examined was not mentioned as a charge sheet witness. The learned S.D.M. passed on orders on this petition on 7 -3 -1973. It is to be noted that all these three witnesses are of Angul town. On 5 -4 -1973 the day when the prosecution case was ordered to be closed, the following charge sheet witnesses were not present in Court and service return of summons had not been received back. Those witnesses are (1) the Officer -in -charge, Thakurgarh P.S. (charge sheet witness No. 16) who was required to produce the T.G.R. register of his police station; and (2) R.T.A. Dhenkanal (charge sheet witness No. 12) before whom the accused had made a statement on 17 -5 -1971 stating the fact that informant G.C. Bhatta had taken back the truck on 8 -4 -1971 as full amount was not paid to the owner. It is to be noted that this statement was seized by the I.O. and kept in the zima of Udayanath Nath, Clerk, M.V. Enforcement R.T.A 's Office, Dhenkanal under a zimanama (Ext. 10) to be produced when required. Udyanath Nath, clerk of the R.T.A 's Office attended the Court without the statement and had deposed that the statement dated 17 -5 -171 made by the accused was lying in the office of the Chairman in a pending appeal. When the learned Magistrate wanted to close the prosecution evidence after examining Udayanath Nath and the I.O. it was suggested to the C.S.I. by Sri G.B. Das, Advocate to file a petition for summoning the three witnesses as per petition dated 7 -3 -1973, as well as the two charge sheet witnesses who were not present and whose service return had not been received back and also to call for the statement dated 17 -5 -1971 which Udayanath Nath had failed to produce. When the C.S.I. did not file such petition Shri G.B. Das, Advocate filed a petition for being permitted to act in the case on behalf of the prosecution when the C.S.I. had permitted him to do so earlier and he had been conducting the case for more than one year and had examined most of the prosecution witnesses. The learned Magistrate by the impugned order not only closed the prosecution case, but did not allow Shri G.B. Das. Advocate to conduct the prosecution.
(3.) TWO questions arise in this revision. (1) Whether Shri G.B. Das would be allowed to conduct the prosecution. (2) Whether the prosecution should be allowed to examine the aforesaid witnesses and exhibit the documents referred to.;

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