Babu @ Umakan v. Opposi

Mr. Mohapatra, learned counsel for the pe petitioner and Mr. Panigra igrahi, learned Additional Standing Counsel sel for the State.

Instant r revision petition is filed by the petitioner cha challenging the impugned or order dated 26.04.2024 under Annexure-3, w , whereby, an application un n under Section 311 Cr.P.C. for recalling P.Ws Ws.9 to 14 has been decline lined by the learned Ad hoc Additional Session sions Judge (FTSC), Bhubanes neswar in T.R. Case No.1955 of 2016.

Referring ring to Annexure-2 series, learned counsel sel for the petitioner submi bmits that the learned court below is not ot right in rejecting such p h plea and cross-examination of the pro prosecution witnesses, namely ely, P.Ws.9 to 14. It is contended that learne arned court below has refuse used to recall the said witnesses for cross-exam xamination primarily on the the ground that it would amount to furthe rther delay especially when, , it had direction to conclude the trial w l within a stipulated time i e in view of order dated 15.11.2023 passed sed by this Court in BLAPL PL No.10772 of 2021. It is further submitted ed that the petitioner has a an invaluable right to cross-examine the e material witnesses, therefo refore, the impugned order dated 26.04.202 024 under Annexure-3 passe assed by the learned Ad hoc Additional Session sions Judge (FTSC), Bhubane aneswar in T.R. Case No.1955 of 2016 is liab liable to be interfered with a h and set aside with a direction to the court t rt to allow the petitioner to r to cross-examine P.Ws.9 to 14. In support ort of such contention, learn arned counsel for the petitioner relies on a dec decision of a Co-ordinate B e Bench of this Court in PidikaSambaruVrs. . State of Odisha and An Another (CRLREV No.490 of 2021) deci ecided on

04.03.2022, whe wherein, it is stated that the right of an accused sed cannot be taken away a and in absence of any such cross-examinatio tion of the material witnesse esses, it would subject the petitioner to su substantial prejudice.

A copy o py of the said judgment is produced in Court to rt today for its perusal.

Learned ed counsel appearing for the State, on the othe other hand, justifies the impu mpugned decision under Annexure-3 stating ng that an offence under S r Section6 of the POCSO Act is involved ed, which stipulates a time f e frame for closure of the trial.

Admitted ittedly, P.Ws.9 to 14 have not been cross-exam amined by the defence. On r n reading of Annexure-3, this Court does not ot find any reason as to why hy the said witnesses have not been cross-exam xamined by the petitioner. P . Perhaps due to the absence of steps, the w e witnesses failed to be cross ross-examined. The petitioner stands prosecute uted under Sections 363,364 364,376-D,302/34 read with Section 6 of the the POCSO Act. No doubt, bt, there is a stipulation under the POCSO SO Act to conclude trial wi within a stipulated time. It is also admitted f d fact that the witnesses we were examined, but could not be cross-exam amined on account of defau efault. However, taking into account the dec decision in PidikaSambaru(su (supra), wherein, this Court has taken note ote of the decision of the ap e apex Court in Godrej Pacific Tech. Ltd. Vrs. Co . Computer Joint India Ltd. td. (2008) 11 SCC 108 with a conclusion tha that cross- examination of t of the prosecution witnesses being an essential tial right of the accused, notw notwithstanding any such provision like Sectio ction 33 of POCSO Act, it w t would not be unjust to provide such an opp pportunity by recalling the he witnesses. Considering the above decision, , though there is delay and y and it has been due to the default of the petiti itioner, as none of the wi witnesses, namely, P.Ws.9 to 14 have bee been cross- examined, the Co Court is of the humble view that in the fi fitness of things, it would b ld be proper to allow recall of the said pro prosecution witnesses cross-examination hence, ordered. Consequ equently, the impugned order dated 26.0

26.04.2024 under Annexure- -3 passed by the learned Ad hoc Additional nal Sessions Judge (FTSC), Bh , Bhubaneswar in T.R. Case No.1955 of 2016 is 6 is hereby set aside with a d a direction to allow cross-examination of P.WS .WS.9 to 14 by the defence w e without any adjournment entertained on th n the dates of trial fixed and and to ensure closure of the trial as soon as as possible preferably within thin a period of three months from the date o e of receipt of this order.

Accordin rdingly, CRLREV stands disposed of. Issue urg urgent certified copy as per rules. (R.K. Pattanaik) Judge Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 22-Aug-2024 11:11:06