B.K. Behera, J.
1. The petitioner assails the judgment and order passed by the learned Additional Sessions Judge, Puri, upholding the order of conviction and sentences passed against him by the learned Additional Chief Judicial Magistrate, Bhubaneswar, under Sections 420, 468 and 467 read with Section 471, Penal Code (for short, 'the Code') with, sentences of rigorous imprisonments for a term of three years under Section 420, for term of three years under Section 468 and for a term of five years under Section 467 read with Section 471 of the Code with a direction that the sentences would run concurrently.
2. The petitioner, it was alleged, while serving at the relevant time as an Assistant Postmaster in the Rourkela Post Office in the district of Sundargarh, cheated the Government of India and committed forgery and used a false document as genuine by falsely scribing an application (Ext. 26/3) purported to be that of Trilokya Chand Bhumji ('the deceased', for short), although, the person was by then dead, who had purchased four National Plan Savings Certificates (for short, 'NPS Certificates') for a total sum of Rupees 1,030/- from the Rourkela post office by presenting the application (Ext. 2) on July 31, 1957 and had been granted a preliminary receipt (Ext. 1) as NPS Certificates were not available then in the post office and the detection of the commission of the offences by the petitioner was made in the following circumstances. After collecting Ext. 1, the holder of the certificates made it over to his mother (P. W. 4) and forgot to collect the certificates before his death which occurred sometime in 1966. After his death, his widow (P. W. 5) withdrew the amounts lying at the credit of her deceased husband in his pass book account (Ext. 28) from Panposh post office in 1973 with the help of P. W. 6, a Postal Overseer of her community. But the mother of the deceased did not take prompt steps to obtain the NPS Certificates or to encash the amount covered thereunder. In 1976, P. W. 4 showed Ext, 1 to P. W. 6 and enquired of him as to whether she could get any money on the basis thereof. P, W. 6 took the receipt to the co-accused Narayan Das (acquitted), then serving as an Assistant Postmaster of the Rourkela Post Office in charge of the Savings Bank Section, who promised to look into the matter and after about a month, he returned the receipt and informed P. W. 6 that the money covered thereunder had already been disbursed on the application of a person who had been identified by the petitioner. P. W. 4 gave out before P. W. 6 that she had not received any payment under Ext, 1. Then P. W. 6 drafted two complaints (Exts. 9 and 10) and sent the same after obtaining the left thumb impressions of P. W. 5 to the Postmaster-General, Orissa, and the Superintendent of Post Offices, Sundargarh Division, for an enquiry into the matter without acceding to the request made by the petitioner and the co-accused Narayan Das not to bring the matter to the notice of the higher authorities. The Superintendent of Post Offices deputed P. W. 15, the Inspector of Post Offices, to hold an enquiry and it was noticed by P. W. 15 that the application (Ext. 26/3) purported to be that of the person who had purchased the NPS Certificates had been filled in at the Uditnagar Sub-Post Office by the petitioner and he had attested the thumb mark therein and the co-accused Narayan Das had certified that the NPC Certificates were actually standing in the name of the deceased and that payment could be made to the applicant on proper identification. After this certificate was given, the application was returned to the Uditnagar Sub-post Office where the sub-postmaster A. K. Misra, who also stood trial as a co-accused but was acquitted, released the money covered under Exts. 3 to 6(NPS Certificates) in favour of the person who had impersonated himself on November 26, 1974, after the person was identified by the petitioner to be the person entitled to receive the money P. W. 15 had obtained the written statements of thepetitioner; and the other two co-accused persons are Ext. 38/1 was the alleged written statement made by the petitioner wherein he had stated that he had identified the applicant, at the instance of the Co-accused Narayan Das. When the enquiry by the postal authorities was on, the Central Bureau of Investigation got scent of this matter and after the first information report (Ext. 53) was drawn up by an Inspector of the Central Bureau of Investigation, P. W. 20, a sub-Inspector took charge of the investigation and on its completion, placed a chargesheet against the petitioner and two other co-accused persons under Sections 120B, 420, 467, 471, and 477 of the Code.
3. The learned Additional Chief Judicial Magistrate framed charges under Sections 420, 468 and 467 read with Section 471 of the Code against the petitioner, a charge under Section 120B of the Code against the three accused persons including the petitioner, separate charges under Sections 467, 471 and 477A of the Code against the co-occused Narayan Das and also separate charges under Sections 467, 471 and 477A of the Code against the co-accused Ajit Kumar Misra.
4. To bring home the charges to the petitioner and the other co-accused persons, the prosecution examined twenty witnesses. The petitioner and the co-accused persons had pleaded not guilty to the charges and the case of the petitioner was that he had not committed any of the offences alleged and charged.
5. On a consideration of the evidence, the learned Additional Chief Judicial Magistrate accepted the defence of the co-accused persons and acquitted them of the charges. Mr. Bohidar, appearing for the opposite party, has submitted before me that no appeal has been preferred against the judgment and order of acquittal in respect of two of the accused persons. The trial Court found the petitioner to be guilty and convicted and passed the sentences as indicated above.
6. The learned Counsel for the petitioner has submitted before me that the findings recorded by the trial and the appellate Courts are unreasonable and unfounded and could not have been arrived at on the evidence on record, He has urged that arbitrarily and to the great prejudice of the petitioner, the trial Court did not afford an opportunity to the petitioner to cross-examine P. Ws. 4 to 6 and this has occasioned serious prejudice to the defence of the petitioner. It has also been submitted that as the learned Sessions Judge, Puri, had specially been authorised to hear appeals arising out of the judgments and orders passed by the learned Additional Chief Judicial Magistrate, Bhubaneswar, who had been authorised to take up trials of the cases investigated by the Special Police Establishment, the learned Additional Sessions Judge, Puri, who had heard and disposed of the appeal, had no, jurisdiction,
7. Mr. Bohidar, the learned Counsel for the opposite party, has contended before me that the appellate Court did have jurisdiction to decide the matter. He has submitted that on a careful consideration of the evidence, concurrent findings have been recorded by the two Courts and no interference is called for by this Court in its revisional jurisdiction. As to the other contention raised by the learned Counsel for the petitioner, however, Mr. Bohidar has submitted before me that in the circumstances of the case, P. Ws. 4 to 6 were undoubtedly material witnesses and they had not been cross-examined and he has left the matter to the discretion of this Court as to whether in view of the submission made by the learned Counsel for the petitioner, an opportunity should be afforded to the petitioner to cross-examine P. Ws. 4 to 6.
8. On a perusal of the record of the trial Court and on a consideration of the evidence, it would not, in my view, be necessary for me to go into the materials placed by the prosecution against the petitioner or with regard to the jurisdiction of the appellate Court which heard and dismissed the appeal as, for the reasons to follow, I am of view that the trial Court has improperly refused to afford an opportunity to the petitioner to cross-examine P. Ws. 4 to 6, who, as has rightly been submitted at the Bar, were material witnesses in the case and whose evidence had been relied on by the trial and the appellate Courts in passing the order of conviction against the petitioner.
9. On March 20, 1979, a date fixed for trial of the case, the trial Court examined P. Ws. 1 to 5 and it was recorded that P. W. 2 was cross-examined by the accused persons and that the accused persons had declined to cross-examine the other witnesses, namely, P. Ws. 3 to 5. As would appear from the order passed in the order-sheet and the cross-examination of P. W. 2., the counsel for the accused persons had not appeared that day and had not cross-examined P. W. 2. It has been recorded that Mr. K. C. Malla, Advocate filed vakalatnama on behalf of accused Narayan Das with the consent of the Advocate previously appearing, The trial was adjourned to the day following and on March 21, 1979, the following order was passed:.All the three accused persons are present.
2. Accused M. Suren files a petition for deferring the cross-examination of the witnesses to be examined today on the ground of sudden illness of his lawyer. He is not prepared to get himself ready for cross-examination, even if a short adjournment is given for the purpose, even till tomorrow. Prayer is rejected.
3. P. P. files hazira of B. L. Samashi, who is examined as P. W. 6 cross-examined and discharge. Ext. 9, 10 and 3/7 to 8/16 taken to evidence through him.
4. Case adjourned to 24th and 25th of April. 1979, for further trial, Summon 16 more witnesses in suitable batches to those two dates. P. P. to take necessary steps in this regard. Accused N. Das complained that copies of police papers, which had been supplied to him are so clumsily written that he is unable to read. He is justified in bringing the complaint. P.P. is requested to show him the original statements of the witnesses during working hours in Court on 23-3-1979 at 11 a.m.
Accused as before.
The adjournment had been sought by the petitioner on the ground of sudden illness of the Advocate, The petitioner could not predicate when his Advocate would recover from his illness and, therefore, no assurance could be given by the petitioner as to whether his Advocate would appear, if a short adjournment was granted. Refusal to adjourn the case, in the circumstances of the case, on the ground of sudden illness of the Advocate was certainly arbitrary and it had caused serious prejudice to the petitioner. On that day, the case was adjourned for further trial on April 24 and 25, 1979.
10. In the meantime, on April 2, 1979, an application was made on behalf of the petitioner through his Advocate for recalling P. Ws. 4 to 6 for cross-examination with an application to advance the case to that day for recording the order. A peremptory cash deposit receipt showing deposit of Rs. 210/- towards the costs of the witnesses had also been filed on that day. It is not understood as to how and under' what circumstances the deposit had been made before an order was passed to recall P. Ws. 4 to 6 and without any order saddling the costs of attendance of the witnesses on the petitioner. An order was passed to summon P. Ws 4 to 6 for their cross-examination on April 24, 1979. On April 24, 1979, the petitioner did not appear in the court and on the basis of a verbal statement said to have been made by P. Ws. 4 to 6 that the appellant had come with them to Bhubaneswar and without any enquiry into the matter, the learned Additional Chief Judicial Magistrate issued a nonbailable warrant of arrest against the petitioner and recorded an order that P. Ws. 4 to 6 who had been summoned at the instance of the petitioner for cross-examination were discharged 'for all times to come.' Thus by this order, the trial Court indicated that the petitioner would not be allowed to summon them for cross-examination even after entering on his defence. This was yet another arbitrary exercise of judicial discretion on the part of the trial Court. The amount of Rs. 210/- was disbursed at the rate of Rs. 70/- to P. Ws. 4 to 6 on that day.
11. That trial proceeded and on April 27, 1979, the petitioner made an application before the trial Court, having surrendered himself, supported by a medical certificate, stating that he had been suffering from Amoebic Colitis with high fever on April 24 and 25, 1979 and his application for bail was rejected and he was remanded to custody after making an observation that Amoebic Colitis was not a dreadful disease and it was 'a tropical disease, suffered by most of the Indians'. The petitioner had to get an order of bail from the Court of the learned Additional Sessions Judge. Bhubaneswar, on the same day and he was released on bail. Evidently because his application for summoning the witnesses had been rejected and he had not been afforded an opportunity to cross-examine them in the circumstances mentioned above and the Court had passed an order that P. Ws. 4 to 6 had been discharged for all times to come, the petitioner did not make another application to recall the witnesses for cross-examination, as has been submitted before me on behalf of the petitioner.
12. Judicial discretion should be exercised properly by a Court of trial. Justice must not only be done, but it must also be seen to have been done. By improper exercise of judicial discretion, the trial Court denied an opportunity to the petitioner to cross-examine P. Ws, 4 to 6 who were very material witnesses and in my view, not to allow an opportunity to the petitioner to cross-examine p. Ws. 4 to 6, in the circumstances of the case, had caused serious prejudice to him.
13. For the aforesaid reasons, I am of the view that an opportunity should now be given to the petitioner to cross-examine P. Ws. 4 to 6 without saddling him with any costs.
14. In the result I would allow the revision and set aside the order of conviction and sentences recorded by the trial Court and maintained by the appellate Court and remit the case for trial in accordance with law. The order shall not affect the judgment and order or acquittal passed in favour of the other accused person and the trial of the case shall proceed only against the petitioner. I would call upon the Court of trial to dispose of the case within four months hence, if possible. The learned Counsel for the petitioner has undertaken that the petitioner shall appear in the Court of the learned Additional Chief Judicial Magistrate, Bhubaneswar, on October 5, 1983. The learned Counsel for the opposite party has also submitted before me that appropriate steps will be taken for the appearance on behalf of the opposite party on that day in the Court. Both the sides shall appear before the trial Court on that day for appropriate directions. I have made this order so that it would not be necessary for the trial Court to issue notices to both the sides again by fixing a date.