The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.439 of 2025 Sefali Mansingh & others …. Petitioners Mr. P.C.Jena, Advocate -Versus- State of Odisha …. Opposite party Mr. S.K.Swain, AGA Mr. J.Katikia, Advocate for Informant CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 07.08.2025 Order No. 03. 1.
Legal Reasoning
Heard Mr. Jena, learned counsel for the petitioners and Mr. Swain, learned AGA for the State as well as Mr. Katikia, learned counsel for the informant. 2. Instant revision is filed by the petitioners assailing the impugned order dated 21st July, 2025 as at Annexure-8 passed in connection with S.T. Case Nos. 40, 40(A), 40(B) of 2015 by learned Additional Sessions Judge, Athagarh corresponding to Athagarh P.S. Case No. 216 of 2014 and directing expunction of the evidence of P.W.6 examined and discharged in the meantime before proceeding to record their statements under Section 313 Cr.P.C. on the grounds stated. 3. Mr. Jena, learned counsel for the petitioners submits that the petitioners moved an application seeking expunction of the evidence of P.W.6 as per Annexure-6 but it has been turned Page 1 of 6 down by the learned court below vide Annexure-8 on the ground of delay and for such move being vexatious with a purpose only to linger the disposal of the case pending for long. It is further submitted that the further cross-examination of P.W. 6 was allowed by the learned court below but his attendance could not be secured, consequent upon which, such an application as per Annexure-6 was pressed into service but it has resulted in the passing of the impugned order (Annexure-8). The contention is that the learned court below could have procured the attendance of P.W.6 for the purpose of further cross-examination but it has failed to do so and at the same time, declined to expunge the evidence so far received from him and therefore, the impinged order dated 21st July, 2025 i.e. Annexure-8 is liable to be interfered with since there is an allegation of impersonation from the side of the petitioners. 4. Recorded the objection of Mr. Swain, learned AGA for the State. Mr. Katikia, learned counsel for the informant would submit that learned court below did not commit any serious error or illegality in passing the impugned order i.e. Annexure-8 and that apart, the entire evidence of P.W. 6 cannot and could not have been expunged on the request of the petitioners with the application filed as per Annexure-6. While advancing such an argument, Mr. Katikia, learned counsel refers to Section 33 of the Indian Evidence Act and also a citation of the Apex Court in Rajesh Yadav & another Vrs. State of Uttar Pradesh (2022) 12 SCC 200. The further submission is that any such evidence received from P.W.6 cannot be dispensed Page 2 of 6 with entirely but may be used appropriately touching upon the issues in respect of which the cross-examination has been held. 5. Admittedly, the recall of P.W. 6 was allowed by the learned court below and he failed to turn up with a report received back that no such person by name Rajesh Kumar Behera is or was living or residing permanently or temporarily in the address given. Referring to such a postal remark, Mr. Jena, learned counsel for the petitioner submits that impersonation is suspected as P.W.6 did not appear after being examined, cross- examined and discharged. Consequent upon the failure of the witness namely, P.W.6 to attend the Court, the petitioners moved the application i.e. Annexure-6 seeking expunction of the evidence recorded by the prosecution through him but as earlier stated, the request of the petitioners has been declined by learned court below as per Annexure-8. 6. In the first place, the Court is of the view that when P.W. 6 did not respond, it was for the learned court below to direct the prosecution to furnish the correct address of the said witness and to issue summons once again or at least, to take coercive action to procure his attendance for the purpose of trial. In fact, such an action against P.W.6 could not have been taken by learned court below in view of the postal report received. In any case, the learned court below, according to the Court, should have exercised the powers by taking further steps in order to ensure attendance of P.W.6 as he was examined and cross-examined by the petitioners. Such an exercise having not been undertaken by learned court below and after the Page 3 of 6 prosecution evidence was closed, when the application as per Annexure-6 dated 12th June, 2025 was moved, the point is, whether, the entire of the evidence of P.W.6 is to be expunged. The case law cited by Mr. Katikia, learned counsel for the informant in Rajesh Yadav(supra) laid down the proposition of law to the effect that Section 33 of the Indian Evidence Act is an exception to the general rule which mandates adequate facility for cross-examining a witness, however, in a case, where a witness after the completion of the chief examination and while subjecting him to substantial and rigorous cross- examination did not choose to get into the witness box on purpose, it is for the Court to utilize the said evidence appropriately. It is further held and observed therein that the issues over which the evidence is completed could be treated as such by the court and then to proceed. It is also held that, resultantly, the issues for which the cross-examination is not over could make the entire examination as inadmissible and it is for the court to decide the aforesaid aspect. It does mean that discretion is left open for the court to accept the evidence of a witness, who failed to turn up at a later stage appropriately with reference to the evidence received through his cross- examination touching upon the issues involved. In view of the above settled question of law as delineated by the Apex Court in Rajesh Yadav (supra) with a reference to an earlier decision in Vinod Kumar Vrs. State of Punjab (2015) 3 SCC 220, it has to be held that acceptability of the evidence of P.W.6 to the extent he has been cross-examined to be looked into by the learned court below at the time of disposal of the case but Page 4 of 6 before that an effort should be made to ensure his production by such means even with issuance of a Bailable Warrant as he was examined, cross-examined and discharged and in view of the plea advanced by the petitioners alleging impersonation against the prosecution. Such an exercise and approach, in the considered view of the Court, would serve the purpose and meet the ends of justice. 7. 8. Hence, it is ordered. In the result, the revision petition stands disposed of with a direction to learned Additional Sessions Judge, Athagarh to take such measures as necessary in order to ensure the attendance of P.W.6, namely, Rajesh Kumar Behera and in case, he turns up, to allow further cross-examination by the petitioners and in the event, there is a default, to proceed to deal with the matter with regard to the acceptability of the evidence received from him through the prosecution keeping in view the settled law decided by the Apex Court in Rajesh Yadav (supra). It is further directed that the learned court below shall comply the direction as aforesaid and to ensure further cross- examination of P.W.6 and disposal of the proceeding as soon as possible preferably within a period of two months from the date of receipt of a copy of this order without entertaining further adjournments from anyone for that matter. (R.K. Pattanaik) Judge Page 5 of 6 I.A. No. 765 of 2025 1. Heard Mr. Jena, learned counsel for the petitioner, Mr. Katikia, learned counsel for the informant and Mr. Swain, learned AGA for the State. 2. 3. Instant I.A. is filed for interim orders. I.A. be registered forthwith. 4. Mr. Jena, learned counsel for the petitioners submits that in spite of an interim order dated 28th July, 2025 in I.A. No. 648 of 2025, the learned court below has issued NBWAs against them on 1st August, 2025.Considering the submissions of the learned counsel for respective parties and as liberty was allowed in favour of the petitioners seeking an adjournment before the learned court below but in absence of continuation of the said order, NBWAs have been issued on 1st August, 2025, the Court is inclined to direct recall of such order in order to enable further cross-examination of P.W.6 at the earliest and disposal of S.T. Case Nos. 40, 40(A), 40(B) of 2015 within the stipulated period. 5. Urgent copy of the order be issued as per rules. kabita Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, Cuttack Date: 11-Aug-2025 17:16:17 (R.K. Pattanaik) Judge Page 6 of 6