The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.530 of 2025 Allaudin Khan ..... Petitioner Represented By Adv. - Kabir Kumar Jena -versus- State Of Odisha and another ..... Opposite Parties Mr. C.M. Singh, ASC CORAM:
Decision
ORDER 09.09.2025 Order No. 06. 1. 2. This matter is taken up through Hybrid mode. Heard learned counsel for the Petitioner as well as learned counsel for the State. Perused the application as well as the prayer made therein. 3. The present application has been filed under Section 528 of BNSS, thereby challenging order dated 24.12.2024 passed in Criminal Revision No.96 of 2024 by the learned 2nd Additional Sessions Judge, Cuttack, dismissing the Criminal Revision No.96 of 2024 as not maintainable and confirming order dated 04.07.2024 passed in S.T. Case No.04 of 2023 by the learned ASJ (STC), Cuttack, thereby rejecting the application filed by the Petitioner under Section 311 of Cr.P.C. to recall P.W. No.1-Informant for further cross-examination. Page 1 of 5. 4. Learned counsel for the Petitioner at the outset contended that the Petitioner is facing a sessions trial for commission of an offence punishable under Sections 354(A), 294, 323, 307, 427, 34 of IPC in S.T. Case No.4 of 2023, pending in the Court of learned ASJ (STC), Cuttack. In course of trial the Informant was examined as P.W.-1 on 24.03.2023. Thereafter, an application was filed at the instance of the Petitioner under Section 311 of Cr.P.C. to recall P.W.-1 for further cross-examination on the ground that certain relevant questions which are in the nature of contradictions, were not asked to the P.W.-1, Informant who is a material witness to the occurrence. The aforesaid application was filed after examination of seven witnesses from the side of the prosecution. Although it is a fact that the evidence from the side of the prosecution is not yet over. Learned counsel for the Petitioner further contended that inadvertently certain relevant questions related to the contradictions with regard to the previous statement of P.W.1 in her FIR and the statement recorded under Section 161 of Cr.P.C. before the Police were not confronted to the P.W.1. The same was detected at a later stage of trial. Since the Informant is a material witness, the conducting counsel thought it is relevant to ask such contradictions to the P.W.1 by recalling her and accordingly the application under Section 311 of Cr.P.C. was filed. Along with the application, a questionnaire containing six questions to be asked to the P.W.1 was also filed before the learned trial Court. Although, a ground was taken by the prosecution that such an application has been filed only with the intention to somehow prolong the trial. It was also contended on behalf of the prosecution that such questions have already been asked to the P.W.1 previously. A close scrutiny of the impugned order dated 04.07.2024 indicates that the learned trial Page 2 of 5. Court has observed that such questions were previously asked to the P.W.1. Accordingly, the learned counsel for the Petitioner contended that such a finding of the learned trial Court is erroneous as the copy of the deposition of P.W.1 clearly reveals such questions were previously not asked to the P.W.1. Learned counsel for the Petitioner further contended that the learned trial Court has not discussed with regard to the questionnaire and the specific questions which have been formulated by the Petitioner to be asked to the P.W.1 in the impugned order dated 04.07.2024. On such ground, learned counsel for the Petitioner contended that the impugned orders passed by the learned Courts below are liable to be set aside at this stage. 5. Learned counsel for the State on the other hand objected to the prayer made in the present application. He further contended that the learned trial Court has not committed any illegality in rejecting the petition of the Petitioner filed under Section 311 of Cr.P.C. to recall the P.W.1 after a long gap of almost two years from the date when she was originally examined in the Court. Learned counsel for the State further contended that by filing the application under Section 311 of Cr.P.C., the accused-Petitioner is trying to prolong the trial. He further contended that the questions included in the questionnaire have already been asked to the P.W.1. As such, not recalling the P.W.1 would not impinge the case of defence in any manner except wasting the valuable time of Court. On such ground, learned counsel for the State objected to the prayer made in the present CRLMC application. 6. Having heard the learned counsels appearing for the respective parties, on a careful examination of their submission, further on a close scrutiny of the impugned orders passed by the Page 3 of 5. learned Trial Court as well as the learned Revisional Court, this Court observes that the Petitioner being aggrieved by the rejection of his application under Section 311 of Cr.P.C. to recall P.W.1 has approached this Court by filing the present application. On perusal of the record, it appears that the P.W.1 was initially examined and cross-examined on 24.03.2023. Thereafter, several prosecution witnesses have been examined. Although the evidence from the side of the prosecution has not been closed, an application was moved to recall P.W.1 under Section 311 of Cr.P.C. to record the contradictions by putting the questions by P.W.1. Such application has been rejected by the learned trial Court on the grounds mentioned in order dated 04.07.2024. On perusal of order dated 04.07.2024, this Court observes that the learned trial Court has not specifically considered the questions included in the questionnaire filed along with the application of the Petitioner under Section 311 of Cr.P.C. On perusal of the deposition of the P.W.1, which has been filed by the Petitioner by way of an additional affidavit, it appears that the Petitioner was examined and subsequently he was cross- examined by the defence. The cross-examination which starts from Para-4 and continues up-to Para-12 of the deposition of P.W.1 reveals that the questions that have been sought to be put to the P.W.1 have not been asked specifically to the P.W.1. The present case being a sessions triable case, the learned trial Court should have been more careful while examining the petition filed by the Petitioner under Section 311 of Cr.P.C. This Court would further like to observe here that mere mechanical rejection of the applications sometimes causes delay in conclusion of the trial. Moreover, the Court is under legal obligation to ensure that every accused gets a fair trial, particularly in cases where the offences Page 4 of 5. were triable by a sessions Court. Keeping in view the aforesaid principle, further taking into consideration the fact that only one prosecution witness is sought to be re-examined by the questionnaire already filed before the Court, this Court is inclined to allow this application by setting aside the impugned orders dated 24.12.2024 and 04.07.2024. Accordingly, the learned trial Court is directed to recall P.W.1 for a single day and permit the Petitioner to cross- examine P.W.1 on that particular date and the P.W.1 shall be discharged on the very same day. Since it is found that due to latches of the Petitioner the questions were not asked, this Court is of the view that the Petitioner is to be imposed with a cost for such latches. Accordingly, it is directed that subject to the Petitioner depositing a sum of Rs.1,000/- to the Advocates’ Welfare Fund of Local Bar Association within fifteen days and furnishing money receipt thereof in proof of deposit, the learned trial Court shall recall the witness in the manner as has been directed hereinabove. 7. With the aforesaid observation/direction, the CRLMC application stands disposed of. S.K. Rout ( Aditya Kumar Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2025 18:10:41 Page 5 of 5.