The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.3059 of 2024 Meghanada Paramanik ..... State Of Odisha -versus- ..... Petitioner Represented By Adv. – Mr. Arijeet Mishra Opposite Party Represented By Adv. –
Legal Reasoning
Mr. M.K. Mohanty, ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 28.08.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard the learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Party. Perused the materials on record. 3. The present application has been filed by the Petitioner by invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. thereby challenging the order dated 10.05.2024 passed by the learned A.D.J.-cum-Special Judge, Jajpur in C.T. (Spl.) Case No.213 of 2011. 4. By virtue of the impugned order dated 10.05.2024, the application filed by the Petitioner under Section 311 of Cr.P.C. to Page 1 of 5. recall P.W.3, who happens to be the Informant in this case, for his cross-examination, has been rejected by the Court in seisin over the matter. 5. Learned counsel for the Petitioner, at the outset, submitted that P.W. 3, namely one Makara Sethi, who happens to be the Informant in the present case, is the material witness. However, inadvertently his cross-examination was declined at the initial stage of the trial when he was examined in Examination-in-Chief on 19.08.2015. At a later stage of the trial, it was realized that certain questions have inadvertently been left out to be asked to the Informant, who is a star witness, so far the present trial is concerned. Learned counsel for the Petitioner further submitted that the learned trial court has rejected the application only on the ground that the application has been filed 9 years after P.W. 3 was examined and discharged. Therefore, on the ground of delay only, the application of the Petitioner has been rejected. 6. Learned counsel for the State, on the other hand, supported the order dated 10.05.2024 on the ground that the trial court has not committed any illegality in rejecting the application of the Petitioner on the ground of limitation alone. He further contended that it is apparent from the record that there exists a delay of 9 years in recalling the P.W.3-Informant. In such view of the matter, learned counsel for the State submitted that the application filed by the Petitioner under Section 311 of Cr.P.C. is devoid of merit and the trial court has rightly rejected the same. Accordingly, it was submitted that the impugned order of the learned court below does not call for any interference at this stage. Page 2 of 5. 7. Having heard the learned counsels appearing for the parties and on a careful examination of the materials on record, this Court observes that P.W.3, namely, Makara Sethi, is the Informant in the present case. Therefore, undoubtedly he is the material witness, so far the present trial is concerned. It is also evident from record that his examination-in-chief was recorded on 19.08.2015 and he was discharged on that date and the defence declined to cross-examine P.W.3. Admittedly, there is a delay of 9 in filing the application under Section 311 of Cr.P.C. by the accused-Petitioner. In the context of this delay, this Court examines the provision contained in Section 311 of Cr.P.C. 8. The said provision provides that any court may at any stage of a trial or inquiry or other proceedings under the 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, only if such evidence appears to be essential for the just decision of the case. So far Section 311 of Cr.P.C is concerned, it appears that the witness can be summoned or re-examined at any stage of the trial provided the trial is still pending before the trial court and the court is of the view that the application under Section 311 of Cr.P.C. has been filed for recall or re-examination of witness whose evidence is crucial for just adjudication of the matter at hand. 9. Although no time limit has been prescribed for making such application and during the trial at any stage such an application could be filed, however, this Court is of the considered view that such an application is required to be filed within a reasonable time. Moreover, the aid provided under Section 311 of Cr.P.C should not be allowed to be misutilized by the defence and the same cannot be Page 3 of 5. used to prolong the trial unnecessarily. The only parameter that is required to be considered by the Court in seisin over the matter, before whom such an application is filed, is whether the evidence of the witness in question is essential for the just decision of the case. 10. On perusal of the impugned order dated 10.05.2024, it appears that the learned trial court has proceeded only on the ground of limitation. So far the statutory parameter, i..e, the nature and/or weightage of the evidence of the witness in question and whether the said evidence is essential for a just decision of the case, are concerned, it appears that the Court in session over the matter has not considered the same while passing the impugned order. Moreover, this Court is also of the view that delay, if any, can very well be compensated by imposing appropriate cost by factoring in the period of delay. Moreover, in the absence of any material/explanation, the delay in trial cannot be solely attributed to the defence. 11. Taking into consideration the aforesaid analysis of legal position, the order dated 10.05.2024 passed by the learned A.D.J.- cum-Special Judge, Jajpur in C.T. (Spl.) Case No.213 of 2011 is hereby set aside by granting liberty to the Petitioner to move the Court in seisin over the matter by filing a better application taking therein all the grounds including the questionnaire to be asked to the P.W.3. In such eventuality, the trial court shall apply its mind to the questionnaire so submitted and adjudicate as to whether answer to such questionnaire are essential for a just decision of the case. In the event the trial court comes to a conclusion that questions are essential for a just decision of the case, then the application of the Petitioner be allowed by imposing adequate costs for the delay in making such application. The aforesaid direction assumes more importance, when Page 4 of 5. considered in the background of assuring a fair trial to every accused facing trial. Delay alone cannot be the criteria to reject the application under Section 311 of Cr.P.C. 12. Needless to mention here that in the event it is found that the evidence is not essential, then necessary consequential orders to be passed by the Court in seisin over the matter. In the event the application is legally required to be allowed, when the Court in seisin over the mater shall do well to provide one opportunity to the defence subject to payment of cost, as would be deemed appropriate, and the recalled witness be cross-examined and discharged on a single day. 13. With the aforesaid observation and direction, the CRLMC is disposed of. ( Aditya Kumar Mohapatra) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 30-Aug-2024 20:21:06 Page 5 of 5.