1.Gunanidhi Naik 2.Sachidananda Naik v. …. Opposite Parties Mr. N. Moharana, ASC CORAM: JUSTICE SAVITRI RATHO Order No. 01
Case Details
// 1 // IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 3010 of 2022 1.Gunanidhi Naik 2.Sachidananda Naik Petitioners Mr. A.K. Nath , Advocate …. State of Odisha (Vigilance) Versus …. Opposite Parties Mr. N. Moharana, ASC CORAM: JUSTICE SAVITRI RATHO Order No. 01. ORDER 10.11.2022 (Through hybrid mode) 1. This application under Section 482 Cr.P.C. has been filed challenging the order dated 21.09.2022 vide Annexure-1 rejecting the application of the petitioners filed under Section 311 of the Cr.P.C., to recall P.W.1 for cross-examination. 2. Learned counsel for the petitioners submits that P.W.1 had been examined on 02.03.2020 , but could not be cross-examined on that day as
Legal Reasoning
learned counsel for the petitioners was ill. 3. Mr. Moharana, learned Additional Standing Counsel (Vigilance) opposes the application submitting that the counsel for the petitioners had declined to cross examine the witness when he was examined on 02.03.2020 and the application under section – 311 Cr.P.C. had been filed after a delay of two years and no reasons for filing the petition after such a long delay were cited in the application nor were the questions which were proposed to be asked to P.W.1 mentioned in the application. As it Page 1 of 9 // 2 // was apparent that the application had been filed only to protract the trial, the same had been rightly rejected. 4. Perusal of the petition under Section 311 of Cr.P.C. which is Annexure-2 to this application reveals that no reasons have been cited for the delay in filing the application. It has been averred in the petition that there are serious contradictions have been noticed in the statement of the said witness in his statement recorded during investigation and his evidence in court for which the accused wanted to put some material relevant questions to confront him but the questions proposed to be asked to P.W.1 had not been mentioned in the petition filed under Section 311 of Cr.P.C. Although Section – 311 Cr.P.C., does not mandate that the questions proposed to be asked to a witness sought to be recalled, should be mentioned in the application, but giving a list of such questions would enable the Court to decide if the questions are relevant or frivolous and if failure to ask such questions to the witness would prejudice the defence. Valuable time of the court would also be saved as it would be able to cull out the irrelevant and unnecessary questions and confining the cross examination to relevant questions only. 5. At this juncture, it would be apposite to refer to the provisions of Section - 311 Cr.P.C. and Section 138 of the Evidence Act and to some of the decisions of the Supreme Court on this point. Section 311, Code of Criminal Procedure 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 person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; Page 2 of 9 // 3 // 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. Section 138, Evidence Act Order of examinations- witnesses shall be first examined-in- chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross-examine upon that matter. From a careful reading of the provision of Section – 311 of the Cr.P.C., it is apparent that the trial court has been given wide power for recalling a witness for cross examination or re examination, provided the Court feels it is necessary for a just decision. This power is available to the Court at any stage in any inquiry or trial or other proceeding. The only requirement is that it must be necessary for a just decision. Therefore such power has to be necessarily exercised judicially and with extreme care and caution. Section 138 of the Evidence Act, prescribes the order and manner of examination of and re-examination of a witness and is therefore Page 3 of 9 // 4 // relevant while considering an application under Section – 311 of the Cr.P.C. 6. On the question of delay in filing an application under Section – 311 of the Cr.P.C, in the case of P. Sanjeeva Rao vs. State of Andhra