The High Court
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2036 of 2025 Santosh@santu Behera ..... State Of Odisha -versus- ..... Appellant Represented By Adv. - Rama Krishna Naik Respondent Represented By Adv. – Ms.Sasmita Nayak,ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 29.07.2025 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
Legal Reasoning
2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State. Perused the CRLMC Application as well as the documents annexed thereto. 3. By filing the present CRLMC Application, the Petitioner seeks invocation of inherent power of this Court under section 528 of BNSS, 2023 to quash the order dated 30.04.2025 passed by the learned Additional Sessions Judge-cum-Special Judge (POCSO Act), Keonjhar rejecting the Petition dated 20.03.2025 and 27.03.2025 filed at the instance of the Petitioner under section 311 of Cr.P.C. to recall P.W.1 in Special Case No.404 of 2022 and Spl.Case No.405 of 2022. Learned counsel for the Petitioner at this Page 1 of 5. juncture submitted that he will confine his prayer to the quashing of the order dated 30.04.2025 passed in Special Case No.404 of 2022 under Annexure-4 to the CRLMC Application. 4. Learned counsel for the Petitioner at the outset contended that during trial the Petitioner filed an application under section 311 Cr.P.C. with a prayer to recall the victim (P.W.1) for further cross-examination. Further, referring to the application under section 311 Cr.P.C., learned counsel for the Petitioner contended that since the P.W.1, who is a material witness for the trial, has not been properly cross- examined, the Petitioner is likely to be seriously prejudiced. He further submitted that the aforesaid laches in the cross- examination was detected later on. Thereafter, an application was filed to recall P.W.1, i.e. the victim, for further cross-examination. Such application having been rejected vide order dated 30.04.2025, the Petitioner has approached this Court by filing the present CRLMC Application. 5. Learned Additional Standing Counsel for the State on the other hand objected to the present application filed by the Petitioner for quashing of the order dated 30.04.2025 at Annexure-4. Learned Additional Standing Counsel further contended that the learned trial court by virtue of a detailed order has disposed of the application filed under Section 311 Cr.P.C. She further referred to the restriction contained in the POCSO Act with regard to recall of the victim as witness. Emphasis was laid on the provisions contained in Page 2 of 5. Section 35 of the POCSO Act by the learned Additional Standing Counsel. She further submitted that the aforesaid provision provides that the evidence shall be recoded within 30 days from the date the Special Court takes cognizance and the reasons for delay, if any, be recorded by the Special Court. Sub-Section-2 of Section 35 provides that Special Court is under the legal obligation to complete the trial within one year from the date of taking cognizance of the offence. In view of the aforesaid statutory bar, learned Additional Standing Counsel for the State objected to the recall the victim as witness for further cross-examination. 6. Heard learned counsel appearing for the parties. Perused the impugned order dated 30.04.2025 under Annexure-4. On perusal of the impugned order under Annexure-4 it appears that the Special Court under the POCSO Act, while considering the application under section 311 Cr.P.C. to recall the victim P.W.1, has rejected the application of the accused-Petitioner. On perusal of the order dated 30.04.2025, it further appears that the learned trial court has observed that the incident took place on 24.09.2022. On the same day, F.I.R. was lodged and in both the cases the victim was common. After completion of investigation, Charge Sheet was filed under section 6 of the POCSO Act along with other offences of the Indian Penal Code under Section 450, 342,376AB,376(2)(f),506. In the meantime, Cognizance has been taken and charge has been framed. Out of 13 prosecution witnesses, 12 witnesses have already been examined and that the case is Page 3 of 5. pending for recording of evidence of the I.O. On a detailed analysis of the order dated 30.04.2025, this Court observes that the learned trial court has also considered the questionnaire submitted along with the application under section 311 Cr.P.C. and found that the questions are not relevant and other ground of rejection of the section 311 Cr.P.C. application is that the petition was not presented within time. Accordingly, the same has been rejected. 7. Perused the application under section 311 Cr.P.C. filed by the Petitioner before the learned Special Court as well as the questionnaire attached to such application. On perusal of the questionnaire this Court observes that in total 60 questions have been framed for cross-examination of the victim. As such, it is evident that the intention of the Petitioner is only to delay the trial and harass the victim in a case involving the offence under the POCSO Act. Moreover, the questions framed by the Petitioner are irrelevant. As such, this Court is of the view that the trial court has not committed any illegality in rejecting the application filed by the Petitioner for recall of victim (P.W.1) for further cross-examination. 8. Before parting with the case, this Court would like to observe that the concept of fair trial is the backbone of every trial. Therefore, the delay alone is not a factor on which the learned trial court should weigh the application under section 311 Cr.P.C in a criminal trial. While considering the application under section 311 Cr.P.C, the court should be concerned with the quality and relevance of Page 4 of 5. the evidence and in the event such evidence appears to be essential for a just decision of the case, then the trial court should wield power to recall or summon any witness. In view of the aforesaid observation, this Court grants liberty to be Petitioner to move a fresh application formulating the questionnaire, which shall be confined to the questions pertaining to contradiction in the evidence of P.W.1, within two weeks from today. In such eventuality, the same shall be considered and disposed of in accordance with law as expeditiously as possible. 9. With the aforesaid observation, the CRLMC Application stands dismissed. RKS ( A.K. Mohapatra) Judge Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: AR-CUM-Senior Secretary Reason: Authentication Location: High Court of Orissa Date: 30-Jul-2025 17:55:55