Rabinarayan Sahu vs Sugyani Sahoo
2023 Latest Caselaw 507 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLREV No.267 of 2018

            Rabinarayan Sahu                       ....         Petitioner

                                              Mr. P.N.Pattnaik
                                              Advocate

                                        -versus-
            Sugyani Sahoo                          ....        Opposite Party

                                             Mr.S.K.Mishra,
                                             Addl. Standing Counsel
            CORAM:

                      JUSTICE SASHIKANTA MISHRA
                                       ORDER

16.1.2023.

Order No.

17. 1. This matter is taken up through hybrid mode.

2. The Petitioner is facing trial as the accused in G.R. Case

No.197/97 in the Court of A.C.J.M. (Special), Cuttack. The

case was earlier in the file of learned J.M.F.C., Cuttack. In

course of trial, a petition was filed on behalf of the informant

(P.W.3) under Section 311 of Cr.P.C. with a prayer to recall her

for adducing further evidence. It was specifically prayed that

the sworn petition of the accused filed before this Court in Crl.

Misc. Case No.3556/1997 be allowed to be exhibited by her on

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recall. After considering the contentions raised as also the fact

that petition was filed belatedly, learned J.M.F.C. vide order

dated 5th September, 2017 rejected the same. The case was

subsequently transferred to the court of A.C.J.M. (Special),

Cuttack. The informant (P.W.3) again filed a petition under

Section 311 of Cr.P.C. on the self-same ground. Learned

A.C.J.M., after hearing the parties and on perusal of the petition

along with the xerox copies of the documents sought to be

exhibited held that even though the earlier Presiding Officer

has rejected the similar petition filed on her behalf, yet in the

interest of justice, the same was allowed. Accordingly, the

informant was permitted to present herself for further

examination.

3. Notice of this Revision was issued to the informant, who is

the sole Opposite Party, was made sufficient, but there is no

appearance from her side. Hence, the Revision was heard on

the basis of the submissions made by learned counsel for the

Petitioner, available pleadings and materials on record.

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4. It is evident that the matter was earlier in the file of learned

J.M.FC. and subsequently transferred to the Court of A.C.J.M.

(Special), Cuttack. It is needless to mention that learned

A.C.J.M. also exercises the power of J.M.F.C. and as such,

both the Courts must be held to be exercising co-equal

jurisdiction. It is also borne out from the case record that

identical petition filed by the informant was rejected by the

earlier Presiding Officer on merits. Such fact has been duly

taken note of by learned A.C.J.M. in the impugned order. It is

submitted by learned counsel appearing for the Petitioner that

having once rejected the petition, it is not open to the Court to

allow it again as the same would amount to alteration/review of

the order, which is barred under Section 362 of Cr.P.C. Section

362 of Cr.P.C. runs as follows:

"362. Court not to alter judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error".

5. As has already been held herein before, though the file was

transferred to the Court of learned A.C.J.M. for disposal yet,

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the proceeding as such remained the same. In other words,

mere transfer of the file from one Court to another for disposal

does not transform the same into a different proceeding. Such

being the case, the provision under Section 362 of Cr.P.C. shall

have full application. Learned A.C.J.M., despite noting the fact

that the earlier application was rejected by the previous

Presiding Officer went on to allow the same. This Court is of

the considered view that the same amounts to review of the

earlier order and as such, is hit by the bar under Section 362 of

Cr.P.C.

6. In such view of the matter, the impugned order cannot be

sustained. Resultantly, the CRLREV is allowed and the

impugned order is set aside. The Court below is directed to take

all possible steps to dispose of the case pending before him as

early as possible preferably, within a period of two months.

7. Urgent certified copy of this order be granted on proper

application.

                                               (Sashikanta Mishra)
AKB                                                   Judge



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