State vs Yudhisthira Nanda

R.K. Patra, A.C.J.

This (suo motu) Revision at the instance, of the learned Sessions Judge, Khurda is directed against the judgment and order dated 5.6.2000 of the learned Judicial Magistrate, First Class, Khurda in G.R. Case No. 752 of 1994 (T.R. No. 1 50 of 1999) by which he has acquitted the opposite party of the offences under Sections 279 and 304-A, I.P.C.

The learned Sessions Judge in course of his inspection of the Court of the concerned Magistrate detected that the opposite party was acquitted of the offences under Sections 279 and 304-A, I.P.C. because he was not identified as the driver of the offending vehicle. The learned, Sessions Judge found that of the day when the eye witnesses, were examined in Court, the opposite party was represented by his lawyer u/s 317 of the Code of Criminal Procedure and accordingly had no opportunity to identify the culprit.

I have heard Shri P.C. Rout, learned Additional Standing Counsel for the State. I did not feel inclined to issue notice to the opposite party because his presence was riot necessary for disposal of this Case.

In order to appreciate the point involved, it would be appropriate to state the prosecution case in brief:

On 18.10.1994 at about 2.30 p.m. one Prabhat Kumar Nayak was returning to his house in a scooter from Spinning Mill, Khurda. Near Brahmani Masani on National High Way No. 5 a truck bearing registration No. OSS-991 came from Berhampur side in a high speed and dashed against him. As a result of such accident, he sustained injuries on his person and succumbed to them. The brother of the deceased lodged F.I.R. on the basis of which the police took up investigation. After its completion,

charge-sheet was filed against the opposite party to face the trial. The p lea of the opposite party was one of denial.

In order to prove its case, prosecution examined five witnesses including the informant as P.W. 3. P. Ws. 1 and 2 are the eyewitnesses to the occurrence. P.W. 4 is a witness to seizure of the offending vehicle. P.W.5 is the Investigating Officer. The learned Magistrate recorded order of acquittal holding that the eye witnesses P. Ws. 1 and 2 are silent as to who was driving the offending vehicle.

Section 279, I.P.C. deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner. Section 304-A, I.P.C. deals with an offence where death is caused by doing a rash and negligent act. In both the offences, the identification of the offender is essential. The investigating agency therefore in course of investigation has to see if the offender is a known person to the eye witnesses and if not it should take appropriate steps to get the offender identified by them. It is the bounden duty of the learned Magistrate that the evidence of the eye witnesses is recorded in the presence of the accused so that they would be able to identify him in Court as the culprit.

u/s 317, Code of Criminal Procedure the Judge or Magistrate can at any stage of inquiry or trial dispense with the personal attendance of the accused before the Court if he satisfies that his presence is not necessary in the interest of justice. The discretion to exempt personal attendance of the accused should be exercised judicially with care and caution depending upon circumstances of each case or each occasion. Accordingly, when the question of identification of an offender arises in a case u/s 279 and 304-A, I.P.C., the Judge or Magistrate should see that on the date of the examination of eye witnesses, the accused appears in Court so that they can get scope to identify him.

Here is a case in which the prosecution failed because of the illegality committed by the learned Magistrate in not securing the attendance of the accused on the date when eye witnesses were examined in Court. Had he not exempted the personal attendance of the accused, he would have appeared in Court and the eye witnesses could have got the opportunity to identify him. On careful consideration of the facts and circumstances, I am of the opinion that for illegal exercise of discretion u/s 317, Code of Criminal Procedure the case ended in acquittal resulting in miscarriage of justice ordinarily, I would have set aside the order of acquittal and remitted the matter for re-trial, but having regard to the fact situation, I am not inclined to adopt the said procedure.

With the aforesaid observations, this revision is dismissed. 10. Registry is directed to send copy of this judgment to all concerned for their guidance in future.