The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2974 of 2025 Shabana Perwin ..... Petitioner Represented By Adv. - Jagajiban Pradhan along with Mr. Samir Mishra, Sr. Adv. -versus- State Of Odisha ..... Opposite Party Smt. S. Nayak, ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 07.08.2025 Order No. 01. 1. 2. This matter is taken up through Hybrid mode. Heard Mr. S. Mishra, learned senior counsel for the Petitioner as well as learned counsel for the State. Perused the application as well as documents annexed thereto. 3. By filing the present application under Section 528 of BNSS, the Petitioner seeks to invoke the inherent jurisdiction of this Court to quash order dated 19.07.2025 passed by the learned Chief Judicial Magistrate-cum-Asst. Sessions Judge, Balasore in S.T. No.26/68 of 2013 at Annexure-6 to the application and for a further direction to the learned trial Court to summon the witnesses and produce record as has been prayed for in the application filed by the Petitioner. Page 1 of 5. 4. Mr. Mishra, learned senior counsel for the Petitioner at the outset contended that during a trial involving offences punishable under Sections 341, 323, 324, 325, 307, 294 & 34 of IPC, the Petitioner, who happens to be the Informant, moved an application under Section 311 of Cr.P.C. On perusal of the application at Annexure-4, it appears that such application has been filed on behalf of the prosecution with a prayer to summon two of the doctors, namely Dr. T.K. Satapathy and Dr. R.N. Jee, who have treated the injured in a private Nursing Home in Cuttack and to prove the discharge certificate, i.e. Exhibit-P7. Such application, however, having been rejected vide order dated 19.07.2025 at Annexure-6, the Petitioner has approached this Court by filing the present application. Learned senior counsel for the Petitioner while assailing order dated 19.07.2025, contended that the application of the prosecution has been rejected mechanically. Further, taking the Court to the order dated 19.07.2025, learned senior counsel tried to demonstrate the findings of the learned trial Court with regard to the relevancy of the witnesses sought to be examined and documents sought to be proved. In course of his argument, learned senior counsel laid emphasis on the observation of the trial Court that the application is not entertainable as because that the above named doctors are still working in the General Nursing Home at Cuttack which is a private institution and that calling for the Manager of the said Nursing Home would be a futile exercise. The learned trial Court has also gone on to observe that summoning such witnesses would be an abuse of process of Court and the same would unnecessarily linger the trial. In such view of the matter, learned senior counsel for the Petitioner contended that the order passed by Page 2 of 5. the learned trial Court on the applications of the prosecution under Section 311 of Cr.P.C. is absolutely illegal and unsustainable in law. 5. On a careful scrutiny, this Court observes that two applications were filed under Section 311 of Cr.P.C. the first application was with a prayer to call for the Bed Head Ticket at which the injured was treated and the second application was with a prayer to summon the two doctors for examination from the side of the prosecution. Both these applications were admittedly filed under Section 311 of Cr.P.C. Before dealing with the merits of the contentions, this Court would like to refer Section 311 of Cr.P.C., which is quoted herein below; 6. On a careful scrutiny of the provision contained under Section 311 of Cr.P.C., it is clear that the trial Court has been conferred with power to summon material witnesses or examine persons present in Court. Such power can be exercised at any stage of any trial, inquiry or other proceedings. The provision contained under Section 311 of Cr.P.C. basically provides that any witness can be summoned for examination or re-examination by the Court, if it appears to the Court that the evidence of such witnesses is essential to the just decision of the case. In the instant case the witnesses sought to be summoned were neither examined nor they were cited as witnesses from the prosecution side. Therefore, the prosecution wants to examine them by summoning them through Court under Section 311 of Cr.P.C. 7. In a criminal trial it is a duty of the prosecution to establish the case of the prosecution beyond reasonable doubt. Therefore, the Court provides full liberty to the prosecution to examine any of the Page 3 of 5. witnesses in support of the prosecution case or to adduce any document evidence during trial. In the instant case the prosecution has moved an application purported to be one under Section 311 of Cr.P.C. to summon the two witnesses who were earlier not sworn as witnesses from the prosecution side. Probably the applications were moved to summon such witnesses keeping in view the fact that the injured was referred from DHH, Balasore to Cuttack for further treatment and during such time he was treated by two of the doctors whom the prosecution seeks to examine as witness in this case. 8. So far, the first application under Section 311 of Cr.P.C. is concerned, the same has been answered by the learned trial Court in its order dated 19.07.2025. The order dated 19.07.2025 reveals that the Bed Head Ticket of the injured from the DHH, Balasore is not required to be called for as the treating doctor at DHH, Balasore, one Dr. Sasanka Sekhar Das, has already been examined as P.W. 6 and he has already exhibited the injury report and the same has been marked as Ext.-P3. So far the second petition under Section 311 of Cr.P.C. is concerned, the learned trial Court has observed that there is no material before that Court to verify as to whether those doctors are still working in the General Nursing Home, Cuttack which is a private institution and that calling for the Manager of the Nursing Home would not be fruitful. Accordingly, the prayer of the Petitioner for summoning those two witnesses has been rejected. 9. On a careful analysis of the aforesaid factual scenario, further keeping in view the legal provisions contained in the Code of Criminal Procedure, this Court is of the view that the entire responsibility of establishing the prosecution case lies on the prosecution. Therefore, a duty is cast upon the prosecution to Page 4 of 5. carefully choose the witnesses they want to examine to establish the prosecution case. However, it appears that the two doctors sought to be examined through the Court in exercise of the power under Section 311 of Cr.P.C., were not initially named in the list of the witnesses to be examined from the prosecution side. It is needless to mention here that Section 311 of Cr.P.C. confers discretion on the trial Court to summon the witnesses. The learned trial Court has exercised its discretion not to summon those witnesses through the process of Court irrespective of the reasoning given by the learned trial Court. In such view of the matter, this Court is not inclined to interfere with the order dated 19.07.2025 at Annexure-6 to the application. However, keeping in view the stage of the trial, i.e. the evidence from the side of the prosecution is still on, liberty is given to the Petitioner to move an application to examine those two witnesses from the side of the prosecution. In such eventuality, the learned trial Court shall consider the same keeping in view the principles of fair trial and such application shall accordingly be disposed of before closure of the prosecution evidence. 10. With the aforesaid observation/direction, the CRLMC application stands disposed of. S.K. Rout ( Aditya Kumar Mohapatra ) Judge Signature Not Verified Page 5 of 5. Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Aug-2025 17:22:48