The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Ashis Kumar Sreechandan @ Ashis Srichandan CRLMC No. 2910 of 2023 …. Petitioner The State of Orissa Mr. R.N. Rout, Advocate Versus …. Opposite Party Mr. S.S. Mohapatra, ASC CORAM: JUSTICE SAVITRI RATHO Order No. 03.
Decision
ORDER 14.09.2023 (Through hybrid mode) 1. This application under Section 482 of Cr.P.C. has been filed for challenging the order dated 29.03.2023 passed by the learned 3rd Additional Sessions Judge, Balasore in Sessions Trial Case No. 218 of 2021 rejecting the application of the petitioner for recall of P.W.3-Bhabesh Kumar Barik, a seizure witness for further examination. 2. Mr. R.N. Rout, learned counsel for the petitioner submits that the petitioner is facing trial for commission of offence punishable under Sections 302/120(B)/449/216/109/147/148/149 of I.P.C. read with Sections 25 and 27 of Arms Act and is in custody since 17.03.2021. P.W.3 who had been examined by the prosecution on 22nd June, 2022 had identified accused Sarua (Biswanath Parida), accused Nana (Sk. Rafique) and accused Sk. Rohit who were standing in the dock. This witness has stated that he does not know the other accused persons standing in the dock. In other // 2 // words although the petitioner was present on that day in the dock, he was not identified/recognized by the witness. But in his deposition at paragraph 4, the witness has stated that “on the same day at about 4.30 P.M. at Ishani Padia police also seized one Pistol from one Ashish Kumar and prepared seizure list.” This witness has been cross-examined by accused Gajendra Soren and Sk. Rohit; Lucky @ Sk. Abdul Asif, Sk. Imran @ Japan, Sk. Ishak Alli, Bijaya Das and Rajendra Mahalik; Biswajit Sendha and Sapan Tapsi; Biswanath Parida; Chandrakant Bahadur; Rabi Barik but was declined by accused, Sk. Farid @ Babulu and cross-examination was adopted by accused, Sk. Rafique, Bidyadhara Rout and the rest of the accused persons (which includes the petitioner). 3. Mr. Rout, learned counsel for the petitioner submits that since the case of the petitioner was being handled by a junior counsel, the said witness was not cross-examined on behalf of the petitioner. His cross- examination is however necessary as he has proved the seizure list. He further submits that the application filed by the petitioner under Section 311 of Cr.P.C. has been rejected by the learned court below on erroneous grounds and is liable for interference. 4. I have perused the petition filed under Section 311 of Cr.P.C. which has been annexed as Annexure-2 to this CRLMC as well as the impugned order dated 29.03.2023 and find that application for recall of the witness had been filed on the ground that P.W.3 could not be cross-examined as the Page 2 of 5 // 3 // Advocate for the accused could not attend the Court when the case was called for hearing and as the witness has proved the seizure list which relates to seizure of Pistol from the possession of the accused-petitioner, the petitioner shall be materially prejudiced and the truth cannot be unearthed and he is willing to bear the Bata expenses of the witness. 5. In the impugned order, the learned trial court has observed that the witness, Bhabesh Kumar Barik has been cross-examined at length by different sets of counsels appearing on behalf different accused persons on 22.06.2022 and the cross-examination made by the other accused persons was adopted by the learned counsel, who was present on behalf of the petitioner and no prayer for adjournment had been made on that date on behalf of the accused on the ground of absence of his lawyer in the court due to his engagement in another court. Relying on a decision of the Hon’ble Supreme Court in the case of Vinod Kumar vrs. State of Punjab reported in (2015) 3 SCC 220, the learned trial court has rejected the said application holding that the ground taken by the learned counsel for recall of the witness is not a valid ground and allowing this application with protract the trial and affect speedy trial as the petitioner is in custody. 6. A report had been called for from the learned 3rd Additional Sessions Judge, Balasore by order dated 08.09.2023 regarding status of the trial. Report dated 12.09.2023 of the learned 3rd Additional Sessions Judge, Balasore has been received in this Court and it has been stated therein that 3 Page 3 of 5 // 4 // witnesses have been examined on behalf of the prosecution, examination of CSW No. 1, 9, 17 and 25 have been declined by the prosecution, the case is posted to 21.09.2023 for examination of chargesheet witnesses 18, 24, 26 and 30. As names of the fathers of CSWs 21, 22, 23, 27, 28, 29, 31 and 32 have not been mentioned by the I.O. in the charge sheet, direction has been given to the prosecution to supply such information so that summons can be issued to the witnesses. 7. I am satisfied that there is no illegality in the order dated 29.03.2023 as P.W. 3 has been cross-examined at length by the counsels for the other accused persons, and that has been adopted by counsel for the petitioner, and the actual reason for recalling P.W.3 for cross-examination or the questions prepared to be put to P.W.3 have not been mentioned in the petition filed under Section 311 of Cr.P.C. 8. But keeping in view the provisions of Section 311 of Cr.P.C. and the fact that the petitioner is facing trial under Section 302 of I.P.C. in the interest of justice, more so when the trial is still continuing, I permit the petitioner to file another application under Section 311 of Cr.P.C. stating the reason for recalling P.W.3, the prejudice that would be caused to him if P.W.3 is not recalled, and the nature of questions to be put to the witness. If such application is filed by 29.09.2023, the same shall be considered on its own merit in accordance with law without being prejudiced by the earlier order of rejection dated 29.03.2023. If the learned trial court feels that Page 4 of 5 // 5 // recall of P.W.3 is necessary for a just decision in the case, he/she shall issue summons to the said witness for his cross-examination. If any other accused persons have filed applications stating the reasons and necessity for cross-examining P.W.3, their applications shall also be heard along with the application of the petitioner in accordance with law so that in case P.W.3 is recalled, for cross-examination, his cross-examination by all the accused persons is completed on the same day. 9. With the above observations, the CRLMC is disposed of. Urgent certified copy of this order be granted on proper application. ......................... (Savitri Ratho) Judge puspa Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 18-Sep-2023 11:26:19 Page 5 of 5