The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2251 of 2022 Sukanta Kumar Behera …. Petitioner Mr. Sanatan Das, Advocate -Versus- State of Odisha Opposite Party …. Mr. S.S. Mohapatra, ASC Mr. P. Panda, Advocate for informant And CRLMC No.2167 of 2022 Sukanta Behera ….
Legal Reasoning
Petitioner Mr. Sanatan Das, Advocate -Versus- State of Odisha …. Opposite Party Mr. S.S. Mohapatra, ASC Mr. P. Panda, Advocate for informant JUSTICE R.K. PATTANAIK CORAM: DATE OF JUDGMENT:04.04.2023 1. Instant petitions under Section 482 Cr.P.C. are at the behest of petitioner for quashing of the impugned orders dated 2nd August, 2022 and 26th July, 2022 passed in CT(S) No.147 of 2021 by the learned Adhoc Additional District and Sessions Judge, (FTSC), Angul with a consequential direction to recall the informant examined as P.W.3 for further cross-examination and to call for the original duty chart and OPD register from CHC, Chendipada in order to confront it to her which is necessary in the interest of justice. CRLMC Nos.2251 & 2176 of 2022 Page 1 of 5 Sukanta Kumar Behera Vrs. State of Odisha 2. In CRLMC No.2251 of 2022, the petitioner moved an application to call for the original OPD register with regard to duty chart of the CHC, Chendipada so as to confront the same to P.W.3 by recalling her for further cross-examination. The application so moved by the petitioner was on the strength of a copy of the duty chart obtained under the RTI Act and when it was produced before the learned court below to confront P.W.3, the same was disallowed on the ground that it is not known whether the signature as found in the original duty chart to be in her handwriting as no affidavit was furnished in support thereof. In CRLMC No.2167 of 2022, recall of P.W.3 was sought for on the ground that she was to be confronted with some questions which were left out earlier. Both the applications have been disposed of by the learned court below, as in the former, production of the original duty chart was declined as it was not supported by an affidavit affirming the handwriting therein to be of P.W.3, whereas, in the latter, it stood rejected on the ground that the scope of recall under Section 311 Cr.P.C. is limited. 3. As per the allegation in the FIR, the informant alleged that during the midnight of 29th June, 2021, the petitioner had been to her residence with food for dinner and when she opened the door to receive the parcel, at that time, he forcibly entered inside and dragged her into the bedroom and committed rape on her and when it was protested, she was abused in slang language and was threatened with dire consequences, if in case the said incident was reported at the PS. With FIR being lodged for the said incident, Chendipada P.S. Case No.308 dated 29th June, 2021 was registered under Section 376 IPC and other allied offences and finally chargesheet was submitted. 4. In course of trial, the petitioner moved the application for recall of P.W.3 and it was disposed of by order dated 26th July, 2022 which is under challenge in CRLMC No.2167 of 2022. CRLMC Nos.2251 & 2176 of 2022 Page 2 of 5 Sukanta Kumar Behera Vrs. State of Odisha Apart from the above, the petitioner pressed into service the other application to call for the OPD register and duty chart from CHC, Chendipada so as to confront it to P.W.3, namely, informant/victim. The latter application was rejected by the learned court below on the ground that it does not disclose as to if the document in question to be in the handwriting of P.W.3. The learned counsel for the petitioner submits that an affidavit dated 26th July, 2022 was furnished by the petitioner complying the order dated 18th July, 2022 of the learned court below but despite that, request for production of the OPD register and duty chart was rejected. In CRLMC No.2167 of 2022, by order dated 2nd August, 2022, recall of P.W.3 was sought for in order to confront some relevant facts to her as it was necessary. Mr. Mohapatra, learned ASC for the State and Mr. Panda, learned counsel for the informant submit that recall of P.W.3 was rightly declined by order dated 26th July, 2022 so also production of the OPD register with duty chart since it was not in confirmity with the order dated 18th July, 2022 and hence, the impugned orders dated 2nd August, 2022 and 26th July, 2022 are justified and according to law and thus, it calls for no interference. 5. In so far as CRLMC No.2167 of 2022 is concerned, as it is made to understand, the petitioner moved the application dated 21st July, 2022 for recall of P.W.3 for further cross-examination on the ground that some relevant questions could not be put to her and inadvertently left out which are therefore required to be confronted. It was to confront previous statement of P.W.3 that the recall was sought for but was declined by order dated 26th July, 2022. It was perhaps to confront P.W.3 with regard to her duty chart which according to the learned court below had already been dealt with by order dated 18th July, 2022. 6. Mere recall of P.W.3 in terms of Section 313 Cr.P.C. without any specific or relevant question is impermissible. P.W.3 was CRLMC Nos.2251 & 2176 of 2022 Page 3 of 5 Sukanta Kumar Behera Vrs. State of Odisha examined, cross-examined and discharged and therefore, in order to recall her of further cross-examination, a questionnaire should have been placed on record. As it is made to suggest, the purpose of recall of P.W.3 is primarily to confront her with regard to duty chart and for that, the OPD register was sought to be called for. In compliance of the order dated 18th July, 2022, the petitioner filed an affidavit since the learned court below was of the view that an affidavit stating that the document produced to be in the handwriting of P.W.3 should be furnished. The learned counsel for the petitioner submits that said affidavit, a copy of which is at Annexure-4, was filed by the petitioner but in spite of that, the impugned order dated 2nd August, 2022 was passed. Since the affidavit was not filed in the manner as it was directed by order dated 18th July, 2022, as it is made to suggest, the learned court below declined to call for the OPD register dated 28th and 29th June, 2022 in order to confront the same to P.W.3. 7. A copy of the duty chart of P.W.3 was produced before the learned court below which was obtained under the RTI Act but the same could not be marked as an exhibit as it was opposed by prosecution. Since it was objected to and not accepted as evidence, the petitioner moved the application to call for the OPD register from the CHC, Chendipada and such a request was considered and lastly by order dated 18th July, 2022, it was
Decision
disposed of with an observation that such original document can only be called for provided it is supported by an affidavit stating that such is in the handwriting of P.W.3. Pursuant to the above Annexure-4 was furnished, however, the learned court below was not satisfied as it was not revealing and was not in accordance with its order dated 18th July, 2022. The learned court below was of the view that in order to confront duty chart of P.W.3, the affidavit must reveal that the said document is in her handwriting. In other words, affidavit since did not contain the fact that the CRLMC Nos.2251 & 2176 of 2022 Page 4 of 5 Sukanta Kumar Behera Vrs. State of Odisha same is in the handwriting of P.W.3, request for production of the OPD register in order to confront it to her was disallowed. 8. In the considered view of the Court, the petitioner should be allowed to file a fresh affidavit in confirmity with the order dated 18th July, 2022 of the learned court below. In fact, the affidavit so furnished by the petitioner vide Annexure-4 was found not in consonance with the order dated 18th July, 2022. For the said purpose, the petitioner was to state the fact necessary to satisfy the court that the OPD register and duty chart so maintained is at the instance of P.W.3 with regard to her being on duty on 28th and 29th June, 2022. In the event, any such affidavit is allowed to be furnished by the petitioner, the learned court below may consider the same and call for the production of the OPD register so as to enable him to confront it to P.W.3 by recalling her for further cross-examination or else as has been held, it may receive secondary evidence in terms of Section 65 of the Indian Evidence Act based on the information with regard to duty chart obtained by him under the RTI Act. 9. Accordingly, it is ordered. 10. In the result, CRLMCs stand allowed in part. As a necessary corollary, the impugned orders dated 2nd August, 2022 and 26th July, 2022 passed in CT(S) No.147 of 2021 by the learned Adhoc Additional District and Sessions Judge, (FTSC), Angul are hereby set aside to the extent as aforesaid. (R.K. Pattanaik) Judge TUDU CRLMC Nos.2251 & 2176 of 2022 Page 5 of 5