The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2808 of 2024 Sunil@suneel Kumar Guru @ Pattnaik ..... Petitioner State Of Odisha -versus- ..... Represented By Adv. - Pranaya Kumar Dash Opposite Party Represented By Adv. – M.K.Mohanty, A.S.C. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 21.08.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned counsel for the State. Perused the application under Section 482 Cr.P.C. as well as the documents annexed thereto and the impugned order dated 08.07.2024. 3. The present application has been filed by the petitioner by invoking the inherent power of this court under Section 482 of the Cr.P.C. to quash the order dated 08.07.2024 under Annexure-2 to the application. Learned counsel for the petitioner at the outset submitted that G.R. Case No. 159 of 2014 was registered for the alleged commission of offences under Section 420/ 409 of I.P.C. which arises out of Padmapur P.S. Case No.33(5)/ 2014. Learned counsel for the Page 1 of 5. petitioner further contended that the earlier conducting counsel had made a prayer to ask certain relevant questions to the prosecution witnesses Nos.1 and 6. He further contended that after the change of the counsel an application on behalf of the petitioner was filed on 04.07.2024 under Section 311 of the Cr.P.C. to recall the PWs 1 and 6 for the cross examination. Learned counsel for the petitioner further contended that a questionnaire was also submitted along with the application. Further, referring to the impugned rejection order dated 08.07.2024, learned counsel for the petitioner submitted that the learned J.M.F.C. Padmapur, has rejected the above application on the ground that change of a counsel is not a ground to allow an application under Section 311 Cr.P.C. for recalling and further examination of the witnesses. Learned counsel for the petitioner further submitted that unless the petitioner is permitted to recall and further cross examine PWs No.1 and 6, the same would cause prejudice to the petitioner. In course of his argument learned counsel for the petitioner further submitted that a fair trial is a guarantee under the Constitution to every citizen. Keeping in view the aforesaid above constitutional principle, the provision in the said of 311 of Cr.P.C has been incorporated in the statute. He further submitted every accused is entitled to a free and fair trial and opportunity to present his case to the best of his ability. At times, due to negligence or latches on the part of conducting counsels, the accused persons suffer and as a result they are convicted due to non- presentation of that case in a proper manner. He further contended that the inconvenience caused to the informant due to the delay or latches on the part of the earlier conducting counsel can be very well be compensated by imposing a reasonable cost and the petitioner is ready and willing to pay the same in the present case. In such view of the matter, learned counsel for the petitioner submitted that order dated Page 2 of 5. 08.07.2024 be set aside in the larger interest of justice and petitioner be provided an opportunity to recall the Pws No. 1 and 6 and be permitted to further cross-examination witnesses in the light of the questionnaire that has been filed by the petitioner. 4. Learned counsel for the State on the other hand objected to the prayer made by learned counsel for the petitioner. While supporting the impugned order dated 08.07.2024, learned counsel for the State submitted that the learned court below has not committed any illegality in rejecting the application of the petitioner under Section 311 Cr.P.C. He further submitted that change of counsel is no ground to allow any application under Section 311 Cr.P.C. Furthermore, the Court is required to examine the questionnaire and ascertain the importance of such questionnaire vis-a-vis the trial of the accused. In the event it is found that certain relevant/materials questions have been left out, then the Court may allow the application under Section 311 Cr.P.C. However, in the present case the petitioner has failed to make out a case for recall of the prosecution witness Nos.1 and 6. On such ground learned counsel for the State submitted that the application filed by petitioner is devoid of merit and must not be entertained at this juncture. 5. This Court on a careful consideration of the submission made by the learned counsels for the respective parties and on a careful examination of the materials on record, observes that the present case the trial, to which the present Section 482 application pertains, is of the year 2014. During the trial, the petitioner moved an application, along with a set of questionnaire, for recalling two of the prosecution witnesses. Keeping in view the questionnaire and its relevance, the application of the petitioner should have been adjudicated not in the Page 3 of 5. manner as has been done by the learned Magistrate by rejecting the said application solely taking into consideration the ground that there was change in the conducting counsel. This Court is of the view that change of conducting counsel is immaterial while considering an application under Section 311 Cr.P.C. The only pertinent question which is required to be examined by the trial court while considering an application under Section 311 Cr.P.C. is the relevance of the questions which are likely to be asked in the event the witnesses are recalled for further cross-examination. In the event the trial court is of the view that the questions formulated and the questionnaire submitted before this Court are relevant for the purpose of trial and that unless those questions are put to the prosecution witnesses the petitioner is likely to be seriously prejudiced, then the Court is under a legal obligation to recall the desired witnesses and permit the accused to further cross- examination them in a time bound manner. Needless to mention here that cost, if any, for inconveniencing the witnesses that are recalled, is to be borne by the accused at whose instance the witnesses were recalled. On a careful examination of the questionnaire submitted by the petitioner, this Court is of the view that the some of the questions therein are relevant to the fair adjudication of the matter at hand. Accordingly, this Court is of the view that the order dated 08.07.2024, rejecting the application under Section 311 Cr.P.C., is hereby set aside. Further, it is directed that learned trial court shall recall the prosecution witness Nos.1 and 6 by issuing summons to them and any expenditure in such recall is to be borne by the present petitioner. It is further directed that trial court shall make every endeavour to conclude the re- examination of PWs No. 1 and 6 and a same day, and the partis are directed to cooperate with the trial court for the same. The order dated 08.07.2024 is set aside subject to petitioner depositing a cost of Page 4 of 5. Rs.4,000/- to the Advocate’s Welfare Fund of the Local Bar Association. 6. With the aforesaid observation and direction the CRLMC application stands disposed of. ( A.K. Mohapatra ) Judge Rubi Page 5 of 5. Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: Hight Court of Orissa, Cuttack Date: 28-Aug-2024 10:37:03