High Court
Case Details
IN THE HIGH TACK IGH COURT OF ORISSA AT CUTTACK CRLMC No. 2534 of 2022 Golakha Chandr andra Pradhan …. Petitioner Mr. J.K. Khuntia huntia,Advocate -versus- State of Odisha& & another …. Oppos pposite Parties . Apat, Addl. P.P Mr. A.K. Apat, Dash, Advocate Mr. S.P. Dash, for O.P. No.2 for CORAM: THE HON’BLE BLE MR. JUSTICE CHITTARANJAN D JAN DASH Date of Judgment: 22.08.2025 Chittaranjan Dash, ash, J. 1. 2. Heard learn learned counsels for both the parties. By means means of this application, the Petitioner s ner seeks to set aside the order da der dated 21.01.2022 passed by the learned learned J.M.F.C., Kendrapara in G.R in G.R. Case No.1579 of 2016 and the confir confirming order dated 05.07.2022 p 2022 passed by the learned Sessions Judge, K udge, Kendrapara in Criminal Revi Revision No.05 of 2022 under Annexur nnexure-6 and 7 respectively. 3. The backg
Legal Reasoning
background facts of the case are that the the Petitioner, being the Informan formant, lodged FIR before the Sadar P.S., K P.S., Kendrapara vide P.S. Case No se No.321 of 2016,arising out of G.R. Case Case No.1579 of 2016, against the st the Opposite Party No.2 for commission ission of offence 022 CRLMC No. 2534 of 2022 Page 1 of 6 under Sections 2 ons 294/506/427 IPC. The matter was was henceforth brought to trial. trial. The P.W.5 namely Prahallad Pra d Pradhan, who adduced his evide evidence on 02.05.2019 and cross-exami examined by the defence was requi required to be recalled for further cross- -examination. To meet the same same, an application under Section 311 C 311 Cr.P.C. was filed before the le the learned J.M.F.C., Kendrapara on 31.07 31.07.2019. The aforesaid applicati plication was appended with a questionnaire nnaire consisting of four questions tions as A, B, C, D. The learned court allow t allowed the said prayer of the Pet he Petitioner and directed P.W.5 to face face the cross- examination. On 0 n 03.09.2021, P.W.5 faced the cross- -examination. After completion o etion of the evidence, the Petitioner-accused ccused moved an application prayin praying the learned court to expunge the qu the question and answer in respect espect to the evidence of P.W.5 beyond th ond the question allowed for cross cross-examination recalling the witness. T ess. The learned court i.e. the S.D he S.D.J.M., Kendrapara, having heard t eard the Parties, declined to expung xpunge the said portion of the evidence. The e. The Petitioner, being aggrieved b ved by the said order dated 21.01.2022 pas 22 passed by the learned S.D.J.M., .J.M., Kendrapara, moved before the learne learned Sessions Judge, Kendrapar drapara in Criminal Revision No.05 of 5 of 2022. The learned Sessions J sions Judge, vide its order dated 05.07.2022 7.2022,found the impugned order o rder of the learned J.M.F.C., Kendrapara, , appropriate and confirmed the the same, dismissing the revision. 4. The learne
Legal Reasoning
learned counsel for the Petitioner, in course ourse of hearing, submitted that the at the impugned orders suffer from serious i rious infirmity in law and are theref therefore liable to be interfered with. It was It was urged that while allowing th ing the application under Section 311 C 311 Cr.P.C., the learned court had rt had confined the recall of P.W.5 only to t ly to the specific questionnaire anne e annexed to the petition. However, during uring such recall, 022 CRLMC No. 2534 of 2022 Page 2 of 6 the witness was su was subjected to as many as twenty-four qu our questions, far exceeding the sev he seven questions originally permitted. T ted. This, it was contended, amou amounted to granting a fresh and rov d roving cross- examination under under the guise of recall, which is imper impermissible in law and has result resulted in prejudice to the prosecution. The n. The Petitioner accordingly praye prayed that the portion of the evidenc vidence recorded beyond the questio questionnaire be expunged from the record, a cord, as retention of the same would would cause miscarriage of justice. 5. The learne learned counsel for the State, on the o the other hand, opposed the subm submissions advanced on behalf of the Pet he Petitioner and contended that the at the impugned orders passed by the courts courts below are just and proper an per and warrant no interference. It was argu s argued that the purpose of Section Section 311 Cr.P.C. is to enable the Court t ourt to elicit the truth by permitting mitting further examination of a witness if t ess if the same is essential for a just a just decision of the case. The additional qu nal questions put to P.W.5, though though not verbatim from the questionn estionnaire, were intrinsically conne connected to the issues raised therein and f and formed part of the same trans transaction, thereby falling within the sc the scope of the recall. It was furth s further contended that expunging such answ ch answers would cause grave prejud prejudice to the accused by curtailing his opp his opportunity to establish his defen defence, whereas retention of the same doe e does not cause any demonstrable trable prejudice to the Petitioner. Hence, th ce, the orders of the learned trial trial court as well as the revisional co nal court are in consonance with t with the settled principles of fair trial and l and do not call for any interferenc ference. 6. Section 31 ion 311 Cr.P.C reads as follows: - 311. Pow person pre . Power to summon material witness, or exa son present.—Any Court may, at any stage o or examine tage of any 022 CRLMC No. 2534 of 2022 Page 3 of 6 inquiry, t summon person in witness, o examined; or recall evidence decision o uiry, trial or other proceeding under this C mon any person as a witness, or examine son in attendance, though not summoned ness, or recall and re-examine any person alr mined; and the Court shall summon and exa recall and re-examine any such person i ence appears to it to be essential to the ision of the case. this Code, amine any oned as a son already nd examine rson if his to the just 7. Section 31 ion 311 of the Cr.P.C. thus vests the Court w ourt with a wide discretionary powe y power to summon, recall or re-examine any ine any witness at any stage of inqui inquiry, trial or other proceeding, if such e such examination appears to the Cou he Court to be essential for a just decision o ision of the case. The provision is co n is couched in the broadest terms so as to a as to advance the cause of justice, w tice, while leaving it to the judicial discre discretion of the Court to regulate egulate its application depending on the n the facts and circumstances of e es of each case. 8. Having reg ing regard to the above position of law, what , what is required to be examined ined in the present case is whether the er the discretion exercised by the le the learned trial court, and affirmed by the by the revisional court, in permittin mitting questions beyond the questionnaire naire annexed to the petition under under Section 311 Cr.P.C., was in consonan sonance with the object and scope scope of the provision, or whether it transg transgressed the limits of fairness s ness so as to occasion prejudice to the prosec prosecution. 9. From the the aforesaid provision, it emerges that s that the Court enjoys ample pow le power to allow or put questions beyo s beyond a pre- submitted question uestionnaire, for such authority is inherent herent in Section 311 Cr.P.C. The . The provision, rendered in broad term d terms, confers discretion on the n the Court to summon, recall or re-ex examine any witness at any sta ny stage of the trial if the Court is satisfie atisfied that such 022 CRLMC No. 2534 of 2022 Page 4 of 6 exercise is essenti ssential for a just decision of the case. The e. The paramount consideration for n for the Court in exercising such pow h power is the advancement of ju t of justice, and the determinative test remai remains whether the additional line al line of questioning is necessary to secur secure the truth and facilitate a fai e a fair adjudication. While such discretion retion is enabling in nature, it is not is not unbridled; it must be exercised judic d judiciously and only for the purpo urpose of eliciting truth, without prejudic rejudice to either party. The caution aution that accompanies the exercise of th of this power is that it cannot be p t be permitted to operate in a manner prejud prejudicial to the accused or to be to be used as a device to fill up lacu lacunae in the prosecution or th or the defence, nor can it extend to a to a wholesale reopening of the f the cross-examination. The emphasis hasis of law is therefore on afford affording a fair opportunity rather than on an on granting an ence. unlimited licence. 10. In the pre he present case, the application under S der Section 311 Cr.P.C. was accom accompanied with a specific questionnaire, naire, yet during the recall of P.W.5 P.W.5, the witness was subjected to a large a large number of additional question uestions, far in excess of those annexed. A xed. Although it may be urged th ed that the Court, in the exercise of its of its discretion, considered such q such questions relevant to the fairness of th s of the trial, the record reveals that ls that this latitude went much beyond the s the scope of the recall that had orig ad originally been permitted. Such a course ourse of action, if left unchecked, ha ed, has the potential to transform the enablin nabling character of Section 311 in 311 into an instrument of abuse, thereby ereby opening a floodgate of adver adverse practices where parties may seek seek to prolong proceedings or fill or fill up gaps in their case under the guise guise of recall. It is one thing for t for the Court to allow limited additiona itional questions essential for clarif clarification; it is another to permit a fresh fresh and roving 022 CRLMC No. 2534 of 2022 Page 5 of 6 cross-examination nation which the provision does not contemp ntemplate. While ultimately the evid e evidentiary value of such answers shall be all be weighed at the stage of final a final appreciation, the very act of permittin mitting extensive questioning beyon beyond the questionnaire, contrary to the s the spirit of the provision, cannot b annot be sustained. 11. Therefore, efore, this Court is of the considered vie view that the discretion exercise xercised by the learned trial court, and affir d affirmed by the revisional court, in ourt, in permitting a line of questioning far g far beyond the questionnaire orig e originally allowed, is not sustainable in la e in law. Though Section 311 Cr.P Cr.P.C. is enabling and wide in its am its amplitude, its application must must remain within the bounds of nec f necessity and fairness, and not b not be stretched to the extent of permitting mitting a de novo cross-examination nation under the guise of recall. The impug impugned orders, having overlooked looked this limitation, suffer from material terial irregularity and warrant interfe interference. 12. According ordingly, the order dated 21.01.2022 pass 2 passed by the learned J.M.F.C., .F.C., Kendrapara in G.R. Case No.1579 o 1579 of 2016, as well as the confirm onfirming order dated 05.07.2022 passed by sed by the learned Sessions Judge, K dge, Kendrapara in Criminal Revision No.0 n No.05 of 2022, are hereby set as set aside, with the consequence that the t the portion of evidence elicited icited beyond the questionnaire annexed to xed to the recall petition shall stand l stand expunged from the record. (Chittaranjan njan Dash) dge Judge Signature Not Verified Bijay Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 08-Sep-2025 10:28:51 022 CRLMC No. 2534 of 2022 Page 6 of 6