The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2157 of 2022 (An application under Section 482, Cr.P.C. against the order dated 22.07.2022 passed by the learned ADJ-cum-Special Court under POCSO Act, Cuttack, in Spl. G.R. Case No.49 of 2021 in rejecting the application under Section 311, Cr.P.C.) Pramod Kumar Choudhury …. Petitioner - versus - State of Odisha & another …. Opp. Parties For Petitioner :- Mr. S.K. Baral, Advocate For Opp. Parties :- Mr. R.B. Dash, Addl. Standing Counsel Mr. S.N. Sahu, Advocate (for Opp. Party No.2) CORAM: HON’BLE MR. JUSTICE CHITTARANJAN DASH Date of Hearing & Judgment : 09.07.2025 1. By means of this application, the Petitioner seeks indulgence of this Court praying to set aside the order dated 22.07.2022 passed by the learned ADJ-cum-Special Court under POCSO Act, Cuttack in Special G.R. Case No.49 of 2021. 2.
Legal Reasoning
The background facts of the case are that, the Petitioner, being an accused in Spl. G.R. Case No. 49 of 2021, is facing trial for the CRLMC No. 2157 of 2022 Page 1 of 8 offences under Sections 294, 506, 354-A, 450, 354-D(2), 509, 378(3) and 511 of the Indian Penal Code read with Sections 4, 8 and 18 of the Protection of Children from Sexual Offences (POCSO) Act. The Petitioner filed an application before the learned Trial Court under Section 311 Cr.P.C., praying for the recall of P.W.2, the victim, for further cross-examination based on a set of six proposed questions. The learned Special Court while allowing the prayer of the Petitioner in part thereby enabling the Petitioner to cross-examine P.W.2 in respect of two questions out of the six questions proposed to be put to the witness, declined to grant permission to the Petitioner to put the rest four questions on the ground that those have already been put to the witness and she has answered those questions. Challenging the partial rejection of his application dated 22.07.2022 under Section 311 Cr.P.C., the Petitioner filed the present Criminal Miscellaneous Case under Section 482 Cr.P.C. before this Court, seeking to set aside the said order and to recall P.W.2 for further cross-examination on all six questions in the interest of justice. 3.
Legal Reasoning
Learned counsel for the Petitioner while assailing the impugned order, inter alia, submitted that in course of the trial, while the victim faced the cross-examination, some relevant and material questions could not be put to her and those questions which were left out, are having much relevance to the substratum of the prosecution case. He further submitted that in the event the said questions are allowed to put to the witness, it would prejudicially affect the interest of the accused. 4. Mr. R.B. Dash, learned Addl. Standing Counsel for the State and Mr. S.N. Sahu, learned counsel appearing on behalf of the Informant-Opp. Party No.2, submitted that the impugned order is just CRLMC No. 2157 of 2022 Page 2 of 8 and proper and the questions declined to be put to the witness have been elaborately confronted to the witness (victim) earlier and the subsequent attempt on the part of the accused to put those questions to the witness would not only embarrass the witness but also would protract the proceeding unnecessarily and the very effort of the Petitioner in assailing the impugned order is just to delay/linger the adjudication of the trial. 5. Perused the petition filed by the Petitioner as well as the questionnaire appended thereto insisted by the Petitioner to be put to the witness besides perusing the evidence of the victim, the copy whereof is produced. 6. Section 311 of the Cr.P.C. reads as follows – “311. Power to summon material witness, or examine person present: Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 7. The discretionary power in Section 311 Cr.P.C. is time and again reiterated by the Hon’ble Apex Court in a catena of decisions, as is held in the matter of Manju Devi vs. State of Rajasthan, reported in (2019) 6 SCC 203, as below – 9.1. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially CRLMC No. 2157 of 2022 Page 3 of 8 intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under: “8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. *** *** ***” 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under CRLMC No. 2157 of 2022 Page 4 of 8 Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as “any Court”, “at any stage”, or “or any enquiry, trial or other proceedings”, “any person” and “any such person” clearly spells out that this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.” the provisions of 8. It is further clarified in the matter of Swapan Kumar Chatterjee vs. Central Bureau of Investigation, reported in (2019) 14 SCC 328, as below – 11. The first part of this Section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is CRLMC No. 2157 of 2022 Page 5 of 8 mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. into taking consideration 12. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law. 13. Where the prosecution evidence has been closed long back and the reasons for non- examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision. facts the 9. The provision under section 311 Cr.P.C. ensures that failure of justice ought not to occasion on account of mistake of either party in brining best evidence on record. This provision indeed phrased in widest possible terms to ensure that the Court has all the necessary evidence before it to arrive at a just decision of the case. The provision U/s 311 Cr.P.C. also empowers the Court to not only recall and re- examine any person already examined as a witness but also examine any person who has not been examined earlier to enable to render a just decision. It confers wide powers on the Court to examine any person present in the Court though he is not summoned as a witness. The CRLMC No. 2157 of 2022 Page 6 of 8 power under this provision can be exercised at any stage of the proceedings, either suo motu or on an application filed by any of the parties. It is a tool provided to the Court to serve the ends of justice and to ensure that truth is brought before it in its entirety. 10. It can emphatically be reiterated that the underlying objective of Section 311 Cr.P.C. is to ensure that the failure of justice is not occasioned on account of a mistake by either party in bringing valuable evidence on record, inasmuch as the criterion for resorting to the provision is whether such evidence is essential to the just decision of the case. The question of whether a witness is material or not depends on the facts and circumstances of each case. An underlying mandate in the application of the provision is to ensure that the Court has all the relevant facts before it in order to determine the truth and arrive at a just decision in the case. However, the power must be exercised judicially, and not capriciously or arbitrarily. 11. In the instant case, it clearly indicates that the questions declined to be put to the witness as prayed for by the Petitioner have vividly been answered by the victim. Very surprisingly, the two questions allowed by the learned trial court for the Petitioner to put to the witness, on the appearance of the witness, the Petitioner declined to cross-examine her. This conduct of the Petitioner clearly indicates that the attempt on the part of the Petitioner to recall the witness seeking the assistance of the court to put further question(s) in the guise of the cross-examination is nothing but to protract the adjudication of the trial only. 12. In view of the foregoing discussion and upon a careful consideration of the facts and conduct of the parties, this Court finds no CRLMC No. 2157 of 2022 Page 7 of 8 infirmity or illegality in the order under challenge. The discretion exercised by the learned Trial Court appears to be both judicious and well-reasoned. Accordingly, this Court is not persuaded to interfere with the same in exercise of its inherent jurisdiction under Section 482 Cr.P.C. 13. Having regard to the age of the case, the Petitioner is directed to submit to the learned trial court for expeditious trial, and the learned Court shall do well to proceed with the case without granting further adjournments or cause inadvertent delay, and to make all endeavours to conclude the trial at the earliest, in accordance with law. 14. Accordingly, the CRLMC stands dismissed. Consequently, I.A. No.1760 of 2022 filed by the Petitioner seeking stay of further proceedings before the learned Trial Court also stands disposed of in terms of this order. ( Chittaranjan Dash ) Judge High Court of Orissa, Cuttack. The 9th day of July, 2025 S.K. Parida, ADR-cum-APS Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 15-Jul-2025 13:58:35 CRLMC No. 2157 of 2022 Page 8 of 8