ORDER
S.C. Mohapatra, J.
1. Complainant is the petitioner against an order refusing his application for directing the accused persons to appear for identification by P.W. 3.
2. Case of the complainant is that opposite party 3 was a candidate for election as Ward-member of Jhinkiria Gram Panchayat. Opposite party 1 was a supporter of opposite party 3 and was canvassing for him. Complainant was canvassing against opposite party 3 being supporter of the rival candidate. Opposite party 1 had earlier requested complaint to sell a piece of land to him. Complainant not having agreed to the same, opposite party 1 bore a grudge against him. In the background, on 7-2-85, all the opposite parties-accused armed with weapons like crow-bar, katari, sickle, kodala, lathi came in a body forming unlawful assembly and cut the green fance and various trees which were on the ridge. They removed those trees. When the complainant challenged their illegal action, opposite party 1 claimed that he would forcibly possess the land since the complainant did not agree to sell the same to him. On protest accused persons-opposite parties rushed to assault him, A complaint was filed and cognizance was taken under Sections 379, 427 and 447, I.P.C. and process was issued to the accused persons.
3. Before charge, complainant examined P.W. 1 who was cross-examined, P.W. 2 was examined on 29-6-87 and cross-examined that day. In course of his examination-in-chief he stated:
I can identify other accused persons if I see them barring Bikartan.
Complainant filed an application on 1-7-1987 for directing the accused persons to appear for identification by P.W. 2 but the same was rejected and case was posted to 9-7-1987. That day, P.W. 3 was examined. During examination-in-chief, he stated:
I can identify other accused persons, if see them.
At this stage, submission was made on behalf of the complainant to defer examination in chief for the purpose of identification by the witnesses which was accepted by the learned Magistrate and further examination in chief was deferred. Complainant filed on that day a petition to that effect and learned Magistrate fixed the proceeding to 15-7-87 for orders giving opportunity to the accused persons to file their objections. Accused persons filed their objections. In the objection, it was stated that an earlier application has been rejected, witnesses know the accused persons and just to harass them the petition has been filed. After hearing parties, learned Magistrate passed an order in Oriya where the only reason is that hearing both parties, submission on behalf of the accused persons appeared to be more forceful and reasonable, keeping the same in view, he rejected the application for directing accused persons to be present in Court to be identified by the witness, P.W. 3. Aggrieved by this order, complainant has filed this revision.
4. On 22-7-1987 complainant filed an application for adjournment on the ground that he has decided to assail the order dt. 15-7-1987 either in the High Court or before the learned Sessions Judge. Since the Presiding Officer did not hold Court, the matter was directed to be posted on 4-8-87 on which day an application for adjournment was filed by complainant to give time to move this Court or the learned Sessions Judge against the order dt. 15-7-87. The said application was rejected and ease was posted to 5-8-87 for consideration of charge. On that date, learned Magistrate heard the representing Lawyer on the question and by order dt. 12-8-87 has discharged the accused persons.
5. Mr. P. Kar, learned Counsel for the petitioner submitted that having deferred further examination of P.W. 3 to identify the accused persons at the stage when he stated that he can identify the other accused persons if he sees them, there was no scope for rejecting the prayer and order dt. 15-7-87 is thus, contrary to law and is unreasonable. Mr. Kar explained that subsequent petition was only a formality to regularise adjournment of the proceeding and on such a proceeding there was no scope for inviting objection or to reject the same by impugned order.
6. Mr. A.R. Das, learned Counsel for opposite parties submitted that there was no direction to accused persons to appear while adjournment was made and in the same order opportunity was given to the accused persons to file objections. He further submitted that order of discharge passed subsequently not having been challenged by the complainant, there is no scope to interfere with the order any further in a proceeding which has been closed on discharge of the accused persons. Mr. Das submitted that despite prayer for adjournment, no order of stay was obtained from this Court or from the Court of the learned Sessions Judge by the time order of discharge was passed and on the date matter was fixed for consideration of framing of charge, complainant was not even present as would be revealed from the order of that day. Mr. Das further submitted that there is no scope for revising order of discharge by me in view of the decision of this Court reported in (1989) 1 OLR 62 State v. Narasingh Charan Satpathy. Mr. Dar further submitted that the complainant not having taken steps for getting direction to the accused persons to appear when PW 2 made a similar version with regard to identification, prayer made in respect of PW 3 is mala fide and this Court should not therefore, interfere with the impugned order. Mr. Das lastly submitted that the order is an interlocutory order and no revision lies against the same.
Refusal to give opportunity to the complainant to get the accused persons identified by a witness who claims that he knows the accused persons but can identify them on reeing them, cannot be said to be an interlocutory order since there is no further scope for that witness to identify the accused persons. Such an order is revisable.
7. Order of discharge is consequential to the order refusing to direct accused persons to appear. Once the order of refusal would be vacated, complainant would get chance to examine the witness further to identify the accused persons. This would be possible by vacating the order of discharge. This Court can vacate the order of discharge by exercising the revisional power in a situation where it is satisfied that the order refusing to give direction to accused persons for identification is not sustainable. Principle that the lease being lost super structure shall fall, is applicable.
8. Power of revision without application by the aggrieved party cannot be exercised, according to submission of Mr. Das, in view of the decision reported in (1989) 1 OLR 62 (supra). In the said decision Agrawala, C.J. held that a Puisne Judge of High Court has no power to call for the records and examine the correctness of an order. The said decision has no application to the present case as I am not calling for any record. Records are before me to examine the correctness of the order and while examining the same, I came across another order which requires examination. Essential is a matter of adjudication to dispense justice. When I am satisfied that the order cannot be sustained and both parties are given opportunity of being heard, to direct the matter to be placed before the Chief Justice to pass a formal order to call for the record where the record is available to me, could only be procedural and the same would cause delay in disposal which is contrary to public policy of speedy disposal Accordingly, the decision which was rendered in a different context, is not applicable and I have jurisdiction to revise the order of discharge.
9. In this case, trial court deferred further examination of PW 3 when he stated that he can identify the accused persons if he sees them as he knew the accused persons. Learned Magistrate did not find any mala fide in the witness. Normally, the witness should have given some description of the accused whom he intends to identify by indicating height, colour, body physique, or special identification mark or the like to convince the learned Magistrate that his requirement is genuine. There is no such statement by PW 3. Added to it, complainant did not take any step when PW 2 in his examination in chief stated in the same manner as PW 3. In such background, in a simple case of an offence under Sections 379, 447 and 427, I.P.C. order of discharge need not be interfered with and no opportunity need be given to the complainant for further examination of PW3.
10. In the result, I find no merit in this revision which is accordingly, dismissed.