Orissa High Court
Sambeet Ray vs Soumendra Nayak on 6 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.472 of 2017
Sambeet Ray .... Petitioner
Mr. Prafulla Kumar Jena, Advocate
-versus-
Soumendra Nayak .... Opposite Party
Mr. Dinesh Kumar Panda, Advocate
CORAM:
JUSTICE M.S. RAMAN
ORDER
06.01.2023
Order No.
06. 1. Challenging the order dated 31st March, 2017 passed by the
learned JMFC, Bhubaneswar in 1CC No.1250 of 2012 rejecting the
petition of the Petitioner/accused under Section 315 of Code of
Criminal Procedure (Cr.P.C), the present petition under Section 482
Cr.P.C. has been filed with a prayer to quash the said order.
2. It is averred in the petition that the said 1CC No.1250 of
2012 emanates from a complaint under Section 138 of the
Negotiable Instruments Act (NI Act). It is stated by the Petitioner
that the petition under Section 315 of Cr.P.C. was made before the
JMFC for allowing the accused-petitioner to give evidence as
witness.
// 2 //
3. It is submitted by Mr. Prafulla Kumar Jena, learned counsel
for the Petitioner that the denial to adduce evidence is violative of
principles of natural justice.
4. Mr. Dinesh Kumar Panda, learned counsel appearing for the
Opposite Party-Complainant furnished an affidavit enclosing
therewith certified copy of the entire order sheet maintained in 1CC
No.1250 of 2012. Mr. Panda though has referred to many orders
which shows that the Petitioner had been in habit of availing time.
Relevant Orders dated 15th December, 2016 and 31st January, 2017
which are relied on by Mr. Panda are reproduced hereunder:
"Order dated 15.12.2016
R/L for both the parties are present and filed haziras.
R/L for accused filed a petition for time on the grounds
stated therein. Perused the case record. It is found that
thirty one adjournments have been provided to accused to
adduce his evidence. It appears that the accused do not
want to adduce his evidence. Hence the petition filed by
the advocate for accused stands rejected. Put on 7.1.17
for argument.
Order dated 31.01.2017
The petition filed by the accused under Section 315 of
Cr.P.C. to give evidence as witness has necessitated the
present order. I have already heard from both the parties.
I perused the case record and it appears from the
record that the case record is lingering for defence
evidence since dated 10.1.14. In the meantime, the
accused has been given many opportunities for adducing
evidence but he did not opt to adduce his evidence. The
case is lingering since the year 2012. The filing of section
315 Cr.P.C. at this belated stage, shows that the accused
// 3 //
does not have the intention to end this litigation. Hence,
the petition under Section 315 Cr.P.C. filed by the
accused, stands rejected. Put up on 9.2.2017 and
10.2.2017 for argument."
5. Mr. Panda, therefore, submitted that after availing very
many opportunities to adduce evidence of self (Petitioner-accused
himself), no leniency may be shown at this stage to the Petitioner to
further protract the case and the learned Magistrate has rightly
observed in his order dated 31st January, 2017 that "he did not opt
to adduce his evidence". In such view of the matter, the interim
order staying the further proceeding in 1CC No.1250 of 2012
pending in the file of the learned JMFC, Bhubaneswar vide order
dated 5th May, 2017 is liable to be vacated.
6. Perused the order-sheets enclosed to affidavit dated 6th
January, 2023 filed by the Opposite Party-Soumendra Nayak. The
order-sheets reveal that on earlier occasion to cross-examine the
complainant, the Petitioner approached this Court in CRLMC
No.1757 of 2013 and where further proceeding was stayed and on
16th December, 2013, the learned JMFC, Bhubaneswar passed the
following order:
"The learned advocate for both sides are present. The
learned defence counsel filed a certified copy of order of
Hon'ble High Court in CRLMC No.1757 of 2013.
Perused the order. The Hon'ble High Court has
permitted the learned defence counsel to cross-
examination the complainant only relating to the
questions indicated in the petition. On the date fixed by
this Court. Put up on 26.12.13 for further cross-
examination of the complainant."
// 4 //
7. Thereafter the matter got adjourned for many times. Since
in the present case further proceeding in said 1CC No.1250 of 2012
has been stayed, the matter could not be proceeded with by the
learned JMFC, Bhubaneswar.
8. This Court is of the opinion that the learned JMFC,
Bhubaneswar should have taken into account the judgment of
Hon'ble Apex Court in the case of Asian Resurfacing of Road
Agency Private Limited and another v. Central Bureau of
Investigation, 2018 (I) ILR-CUT-659 (SC) and Asian Resurfacing
of Road Agency Private Limited and another v. Central Bureau of
Investigation, (2022) 10 SCC 592 = 2020 SCC OnLine 1046 and
adhered to Standing Order No.1 of 2019 dated 9th January, 2019
issued by this Court.
9. In view of the said decision and the Standing Order of this
Court containing instructions, the interim order dated 5th May, 2017
passed by this Court automatically lapsed long ago in view of the
order dated 15th October, 2020 passed in Asian Resurfacing of
Road Agency Private Limited and another v. Central Bureau of
Investigation, (2022) 10 SCC 592. Para 3 of the said order reads as
under:
"We expect that the Magistrates all over the country
will follow our order in letter and spirit. Whatever stay
has been granted by any court including the High Court
automatically expires within a period of six months, and
unless extension is granted for good reason, as per our
judgment, within the next six months, the trial court is, on
// 5 //
the expiry of the first period of six months, to set a date
for the trial and go ahead with the same"
10. For the aforesaid reasons, this Court is not inclined to grant
any relief to the Petitioner-accused as prayed for by interfering with
the impugned order. Hence, the instant CRLMC, challenging the
order rejecting petition under Section 315, Cr.P.C., sans merit,
stands dismissed.
11. A copy of this order be communicated by the Registry to
the Court concerned forthwith.
(M.S. Raman)
Judge
Laxmikant
