The High Court · 2024
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.3450 of 2024 (An application under Section 528 of B.N.S.S., 2023) (under Section 482 of Cr.P.C.) Debendra Kumar Jain @ Debendra Jain ..... Petitioner -versus- State Of Odisha ..... Opposite Party For Petitioner … M/s. Pratap Kumar Nayak, D. Mohapatra For Opposite Party … Mr. Debasish Nayak, A.G.A. ---------------- CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Date of hearing & judgment : 19th September 2024 A.K. Mohapatra, J.
Legal Reasoning
1. On the oral prayer made by the learned counsel for the Petitioner, he is permitted to correct the cause title of the Criminal Miscellaneous Case. Page 1 of 12 Accordingly, the corrected copy of the cause title of the Criminal Miscellaneous Case be uploaded by tomorrow. 2. Heard learned counsel appearing for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Party. Perused the application as well as the documents annexed thereto. 3. The present application has been filed by the Petitioner by invoking the inherent power of this Court under Section 482 of Cr.P.C. with a specific prayer to quash the order dated 22.08.2024 passed by the learned Additional Sessions Judge, Nuapada in S.C. Case No.105/16 of 2003. 4. On perusal of the impugned order dated 22.08.2024, it appears that the accused-Petitioner filed an application before the learned trial court under Section 311 of the Cr.P.C. to recall P.W.19 for further cross-examination, as the said prosecution witness could not be examined by the accused earlier. Page 2 of 12 5. Learned counsel for the Petitioner, at the outset, submitted that although the case is of the year 2003, however, further proceeding in the matter was stayed by this Court at the instance of some of the co-accused persons who had earlier approached this Court, and as a result the trial could not take place for several years. Finally, when the trial was resumed in the year 2022, the Petitioner moved an application to recall the P.W.19 for further cross- examination by defence, who had already been examined earlier. He further contended that earlier when the P.W.19 was being examined by the court, an application was submitted by the Petitioner, at the time of his cross- examination, thereunder seeking time to cross-examine P.W.19. The said application was, however, rejected arbitrarily. Thereafter, the matter was carried to this Court. 6. Learned counsel for the Petitioner further submitted that after the trial was recommenced, the Petitioner moved Page 3 of 12 an application under Section 311 of Cr.P.C. on the ground that P.W.19 is a material witness and non-examination of said witness would cause serious prejudice to the accused- Petitioner. Learned trial court, vide order dated 22.08.2024, while considering the application of the Petitioner under Section 311 of Cr.P.C. has observed that the time petition of the Petitioner was earlier heard and rejected. The Learned Trial Court has also specifically mentioned in the said order dated 22.08.2024 that while opportunity to cross-examine was given to the Petitioner, the P.W.19, Prahallad Rai Gupta, was examined but his cross-examination was closed with a remark ‘NIL’. Learned counsel for the Petitioner further submitted that only ground for rejection of his application under Section 311 of Cr.P.C. is delay in making such application. 7. On perusal of the impugned order dated 22.08.2024, it appears that no further ground has been shown in the Page 4 of 12 impugned rejection order except the ground of delay in making such application under Section 311 of Cr.P.C. 8. In the aforesaid context, learned counsel for the Petitioner referred to the judgment of this Court in Rudra Narayan Sahu v. State of Odisha, reported in 2023 (I) OLR- 948. In the above noted reported case, an application was made under Section 311 of Cr.P.C. after expiry of more than 26 years. Such application of the Petitioner having been rejected on the ground of delay, the Petitioner in the reported case approached this Court by filing an application under Section 482 of the Cr.P.C. The learned coordinate Bench, while allowing the section 482 application of the accused- Petitioner, directed the court below to pass necessary orders for recall of the witness for further cross-examination subject to certain terms and conditions. 9. Learned Additional Government Advocate appearing for the State-Opposite Party, on the other hand, opposed the Page 5 of 12 prayer made by the learned counsel for the Petitioner. He further contended that P.W.19 in the present case was initially examined and cross-examined almost more than two decades ago. Therefore, the present application under Section 311 of Cr.P.C., which has been filed after expiry of a period of almost two decades, is not entertainable in law. He further submitted that the present application under Section 311 of Cr.P.C. at the instance of the accused- Petitioner is nothing but an attempt to prolong the trial unnecessarily. On such grounds, learned counsel for the State submitted that the impugned order rejecting the application of the Petitioner under Section 311 of Cr.P.C. does not call for any interference by this Court at this stage. Accordingly, the Learned Additional Government Advocate appearing for the State-Opposite Party contended that the application filed by the Petitioner under Section 482 of Page 6 of 12 Cr.P.C. is devoid of merit and, as such, the same should be dismissed. 10. Having heard the learned counsels appearing for the respective parties and on a careful examination of the materials on record, this Court is of the considered view that only question that is required to be determined in the present application is as to whether the rejection of the application of the Petitioner under Section 311 of Cr.P.C., vide order dated 22.08.2024, only on the ground of delay, is sustainable in law or not? While answering the aforesaid question, this Court is required to be keep in mind the fundamental principles of criminal jurisprudence which flows from the constitution itself, i.e. every accused is entitled to a free and fair trial. In the criminal justice system, delay alone cannot be the sole ground to curtail the fundamental right of the accused to get a free and fair trial. Moreover, it is the fundamental proposition of the criminal jurisprudence that Page 7 of 12 more serious the crime, the higher is the standard of proof required to establish the said crime and, the right to a fair trial, as guaranteed under Article 21 of the Constitution of India, is fundamental to the criminal justice system. 11. With regard to the Section 311 of the Cr.P.C., it is observed that the said section has been incorporated in the statute thereby conferring a valuable right upon the court to recall any witness at any stage of the proceeding with the only rider being that such evidence must be essential for the just decision of the case. 12. On a careful analysis of the provision contained in Section 311 of Cr.P.C., this Court is of the considered view that the law makers were aware of the factum of delay. However, consciously the law makers have not incorporated any time limit, except the fact that the said application is to be made during any stage of the trial, while conferring the discretionary power under Section 311 of Cr.P.C. upon the Page 8 of 12 courts conducting trial. Thus, it can be concluded that the discretionary power under Section 311 of Cr.P.C. can only be exercised subject to the condition that such evidence must be essential to the just decision of the case. 13. Therefore, the court conducting trial, before exercising such discretionary power, is required to arrive at a conclusion that the evidence that has been left out is material and essential for the just decision of the case. So far the words “essential for just decision of the case” is concerned, no straight jacket formula can be recommended to determine as to whether the evidence in question is essential for a just decision of the case, since the determination of what is ‘essential’ would vary from one case to the other. Therefore, it has been left to the wisdom of the court in seisin over the matter to decide as to what is essential for just decision of the case in the factual background of that particular case. In the present context, it is important that the court below, Page 9 of 12 while conducting a trial, should ensure that the accused must get a free and fair trial, which is a guarantee under Article 21 of the Constitution of India to every citizen. Therefore, while considering an application under Section 311 of Cr.P.C., no other factor should weigh in the minds of the court other than the factors indicated hereinabove. 14. In the light of the aforesaid discussion, as well as keeping in view the factual background of the present case, this Court is of the view that the impugned order dated 22.08.2024, wherein the application of the present petitioner under Section 311 of Cr.P.C. has been rejected, is unsustainable in law as the same has been passed by taking into consideration only the ground of delay not the parameters as provided under Section 311 of the Cr.P.C. 15. In such view of the matter, this Court has no hesitation in setting aside the impugned order dated 22.08.2024. Accordingly, the same is hereby set aside. Further, the Page 10 of 12 matter is remanded back to the court in seisin over the matter with a further direction to provide an opportunity to the Petitioner to submit a questionnaire to be asked to the P.W.19. In such eventuality, if the court in seisin over the matter is convinced that the questions contained in the questionnaire are essential for a just decision of the case, then the trial court should not hesitate to exercise its discretion conferred under Section 311 of Cr.P.C. However, in doing so, the only condition that is being put by this Court is that the entire exercise is to be carried out within a period of four weeks. Further, in the event the P.W.19 is recalled, then the trial court shall do well to fix a particular date on which the P.W.19 shall be cross-examined and shall be discharged. 16. Further, considering the fact that the case is of the year 2003, this Court directs the trial court to make every endeavour to conclude the trial as expeditiously as possible. Page 11 of 12 The Petitioner is directed to cooperate for an early conclusion of the trial. 17. With the aforesaid observation and direction, the CRLMC is allowed. Judge ( Aditya Kumar Mohapatra ) Orissa High Court, Cuttack. The 19th September, 2024/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 23-Sep-2024 11:32:13 Page 12 of 12