The High Court
Case Details
// 1 // IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.502 of 2024 Md. Abdul Salam …. Petitioner(s) Mr. Devashis Panda Adv. State of Odisha & Anr. -versus- ….
Legal Reasoning
Opposite Parties Mr. Sonak Mishra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI
Decision
Order No. ORDER 07.02.2025 05. 1. These matters are taken up through hybrid arrangement. 2. Heard learned counsels for the parties. 3. The present Criminal Revision has been filed by the Petitioner challenging the order dated 05.09.2024 passed by the learned Ad- hoc Additional District and Sessions Judge-cum-First Track-cum- Special Judge, Kendrapara in G.R. Case No.26 of 2020 wherein he has partly allowed the petition filed by the Petitioner and directed to recall the informant on depositing of Rs.1,000/- and refused to recall the victim to be cross-examined. 4. Learned counsel for the Petitioner submits that this Court has earlier decided the similar issue in the judgment dated 04.03.2022 passed in CRLREV No.490 of 2021 (Pidika Sambaru–vrs.- State Page 1 of 7 // 2 // of Orissa & Anr.). Hence, he submits that this Criminal Revision may be disposed of in the light of the judgment passed in the case of Pidika Sambaru (supra). 5. Learned counsel for the Opposite Parties submits that he has no objection, if this matter is disposed of in the light of the judgment passed in the case of Pidika Sambaru (supra). 6. On perusal of the records and the judgment passed in the case of Pidika Sambaru (supra), it appears that similar issue has already been decided by this Court in the said judgment which was disposed of on 04.03.2022. The relevant portions of the said judgment are as follows. “5. Section 311 of the Code provides: in “Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any though not attendance, person summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.” On the other hand, Section 33 (5) of the POCSO Act reads as under: Page 2 of 7 // 3 // “Procedure and powers of Special Court: (5) The Special Court shall ensure that the child is not called repeatedly to testify in the Court.” 6. It is also contended that the intention behind enacting Section 33 (5) of the POCSO is only to ensure that in a genuine case the child victim is not harassed, but cannot be used as a shield by the trial Court to deprive the accused of a right of proper cross examination and therefore a right of fair trial. 7. It is mandatory for a Court to recall witness for further cross-examination if his evidence appears to be essential for just decision of the case. There is no bar for a court to recall a witness for further cross-examination. In Godrej Pacific Tech. Ltd. –v- Computer Joint India Ltd.1, which has rightly by referring to Section 311 of the Code, the Hon’ble Apex Court has held: “The section is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential 1 (2008) 11 SCC 108 Page 3 of 7 // 4 // to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.” is it 8. In Vimal Khanna vs. State2 the Court has held that denial of opportunity to cross examine the witnesses violates the Constitutional guarantee to an accused and vitiates the trial. Vimal Khanna (Supra) has been followed in Mohd. Gulzar v. The State (GNCTD)3, wherein after recording that the counsel for the accused was not present on three consecutive dates to cross examine the witness, the Court held that is a since the right of cross examination valuable right, the child’s right under Section 33 (5) of POCSO Act has to be balanced with the 2 2018 SCC Online Del 11796 (DHC) 3 2018(4) JCC 2291 (DHC) Page 4 of 7 // 5 // aforesaid rights of the accused and thus permitted one more opportunity to the accused to cross examine the alleged victim. In B. C. Deva @ Dyava vs. State Of Karnataka the Court4 was clearly of the view that the power to recall a witness at the instance of either party to ensure justice is done is greater than the provisions set out in Section 33 POCSO Act. The provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law.” 9. In that view of the aforesaid, this Court is of the view the prosecution witnesses being an essential right of the accused, it is evident that non-cross- examination of the said witnesses will put the petitioner to prejudice. In such circumstances, it is not unjust to afford an opportunity to the petitioner to cross-examine P.Ws.1 to 3 by recalling them. 10. In view of the peculiar facts and circumstances of the instant case, the CRLREV is disposed of directing that the learned Additional District and Sessions Judge (FTSC), Jeypore shall recall P.Ws.1 to 3 and the department shall make all endeavours to produce P.Ws.1 to 3 as early as possible for cross-examination by the petitioner preferably within a period of one month from the date of that cross-examination of 4 C. A. (Crl.) No.205 of 2001 (S.C.) Page 5 of 7 // 6 // production of certified copy of this order. After giving the petitioner an opportunity to cross- examine P.Ws.1 to 3, the trial court shall proceed for expeditious disposal of the case. It is further clarified that the Court shall take steps to recall the child witness at one go without disturbing him/her again and again.” 7. In such view of the matter and taking into account the judgment passed in the case of Pidika Sambaru (supra), this Court is of the view that cross-examination of the prosecution witnesses being an essential right of the accused, it is evident that non-cross-examination of the said witnesses will put the petitioner to prejudice. In such circumstances, it is not unjust to afford an opportunity to the petitioner to cross-examine P.W.2 by recalling her. 8. In view of the peculiar facts and circumstances of the instant case, the CRLREV is disposed of directing that the learned learned Ad-hoc Additional District and Sessions Judge-cum-First Track-cum-Special Judge, Kendrapara shall recall P.W.2 and the department shall make all endeavours to produce P.W.2 as early as possible for cross-examination by the petitioner preferably within a period of one month from the date of production of a certified copy of this order. After giving the petitioner an Page 6 of 7 // 7 // opportunity to cross-examine P.W.2, the trial court shall proceed for expeditious disposal of the case. 9. It is made clear that the P.W.2 can only be called for once and no further chance shall be granted. 10. Accordingly, this CRLREV is disposed of. Judge (Dr. S.K. Panigrahi) Sumitra Signature Not Verified Digitally Signed Signed by: SUMITRA NAYAK Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Feb-2025 18:47:31 Page 7 of 7