The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.3795 of 2024 Rakesh Panda @ Manga @ Rakesh Kumar Panda ..... Petitioner State Of Odisha -versus- ..... Represented By Adv. – Mr. Devashis Panda Opposite Party Represented By Adv. – Mr. M.K. Mohanty, A.S.C. CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 03.10.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/ Physical Mode).
Legal Reasoning
2. Heard Mr. Debasish Panda learned counsel appearing for the Petitioner and Mr. M.K. Mohanty, learned Additional Standing Counsel appearing for the State-Opposite Party. Perused the record. 3. The present application has been filed by the Petitioner invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. with a prayer to allow recall of P.Ws. 21 and 22 for further cross-examination. 4. Learned counsel for the Petitioner at the outset contended Page 1 of 7. that being aggrieved by the rejection of his prayer under Section 311 of Cr.P.C. to recall P.Ws. 21 and 22 for further cross- examination vide order dated 26.09.2024 passed by the learned Sessions Judge, Ganjam in S.T. No. 19 of 2014, the Petitioner has approached this Court by filing the present CRLMC application. 5. Learned counsel for the Petitioner, submitted that the Petitioner is facing trial for commission of offences punishable under Sections 147/148/302/120-B/149 of I.P.C. read with Section 3 & 4 of E.S. Act, which arises out of Gosaninuagam P.S. Case No.11 of 2013, corresponding to G.R. Case No.117 of 2013, pending in the court of learned Sessions Judge, Ganjam at Berhampur in the shape of Sessions Trial No.19 of 2014. He further contended that S.T. Case No.19 of 2014, arising out of G.R. Case No.117 of 2013, is being jointly tried along with S.T. No.216 of 2017, arising out of self-same P.S. Case, i.e. Gosaninuagam P.S. Case No.11 of 2013. 6. Learned counsel for the Petitioner further contended that in course of trial after closure of the defence evidence and on the date fixed for argument, an application under Section 311 of Cr.P.C. was moved at the instance of the accused-Petitioner to recall P.Ws. 21 and 22, who happen to be the I.Os. in the present case, for their further cross-examination. Learned counsel for the Petitioner further contended that at a later stage it was found that certain contradictions were not put to the I.Os. by the defence during cross-examination. He further submitted that such lax on Page 2 of 7. the part of the defence counsel is likely to cause serious prejudice to the accused persons. 7. Learned counsel for the Petitioner, further referring to the petition under Section 311 of Cr.P.C., which has been filed as Annexure-4 to the present application, stated that the accused- Petitioner has categorically stated that the material contradictions and omissions made by P.W.1 and P.W.9 in paragraphs-18 to 21 and paragraphs-32 to 40 of their respective cross-examination were not put forth to the P.Ws. 21 and 22. He further submitted that only for the above limited purpose, the accused-Petitioner has sought for recalling of the above noted prosecution witnesses. It was also contended that considering the seriousness and gravity of the allegation and keeping in view the relevance of the material contradictions and omissions of the prosecution witnesses like the I.Os in the present case, the aforesaid application, by the petitioner, under section 311 of Cr.P.C. for recall of witnesses was made before the trial court. 8. Learned counsel would further argue that the trial court without considering the same in its proper perspective and without realizing the gravity and seriousness of such failure on the part of the defence in cross-examining the above noted two material witnesses, rejected the application vide order dated 26.09.2024 principally on the ground that the case is of the year 2014 involving a crime that had taken place on 21.09.2013. It was also observed by the trial court that since a decade has elapsed from the date of commission of crime and since the Page 3 of 7. Hon’ble High Court is pressing hard to dispose of old cases, the application of the Petitioner has been rejected only on the aforesaid ground. 9. On perusal of the impugned order dated 26.09.2024, this Court observed that nowhere in the impugned order the grounds taken in the application under Section 311 of Cr.P.C. has been considered on its own merit and that the relevance of points raised in the application under Section 311 of Cr.P.C. has not been properly examined by the trial court keeping in view the parameters laid down in Section 311 of Cr.P.C. 10. Keeping in view the seriousness and gravity of the allegation and further taking note of the fact that a free and fair trial has been guaranteed to every citizen under Constitution of India, moreover, taking into consideration the procedure laid down in the Cr.P.C. for recalling of witnesses, this Court is of the view that the trial court has committed an illegality by not considering the application of the Petitioner in its proper perspective. Moreover, the trial court has not taken into consideration the grounds raised in the application under Section 311 of Cr.P.C. 11. Further, on perusal of Section 311 of Cr.P.C., it can be seen that the section provides that any court, at any stage of the trial or proceeding may summon any of the witnesses for their examination, or recall and re-examine any of the witnesses who have already been examined. Such further cross-examination or recall of witnesses is subject to the only rider, i.e., it must appear Page 4 of 7. to the court below that the evidence of such witnesses is essential for a just decision of the case. In the present scenario it appears that the parameters which have been laid down under Section 311 of Cr.P.C. have not been taken into consideration by the trail court while considering the application of the Petitioner under Section 311 of Cr.P.C. Therefore, this Court is of the view that the trial court, while dealing with the application under section 311 of Cr.P.C., has proceeded on a misguided perspective. 12. Learned counsel for the Petitioner, in course of his argument, referring to the judgment of the Hon’ble Supreme Court in the case of Rajaram Prasad Yadav v. State of Bihar and Another, reported in (2013) 14 SCC 461, as well as the judgment in the case of Natasha Singh v. Central Bureau of Investigation (State), reported in (2013) 5 SCC 741, submitted that the Hon’ble Supreme Court has categorically held that the trial court is precluded to prejudge evidence of witnesses sought to be examined and that the examination of a witness cannot be refused on the ground that evidence of such witness is not conclusive. On such ground, the application under Section 311 of Cr.P.C. has been allowed. A similar view has also been taken by this Court in the case of Rudra Narayan Sahu v. State of Odisha decided vide judgement dated 11.11.2022 by a coordinate Bench in CRLMC No.2752 of 2022, and in CRLMC No.947 of 2023, disposed of vide judgment dated 15th March, 2023 by another coordinate Bench. Page 5 of 7. 13. Learned counsel for the State, on the other hand, submitted that the trial court has not committed any illegality in passing the order dated 26.09.2024. He further contended that the application under Section 311 of Cr.P.C., for recalling witnesses who were initially examined several years ago, has been made after a considerable gap of time. On such ground, learned counsel for the State submitted that the prayer for recalling of the witnesses for their further cross-examination is not sustainable in the eye of law. 14. In view of the analysis of facts and legal position, this Court is of the considered view that the trial court has committed an illegality while passing order dated 26.09.2024. 15. Accordingly, the CRLMC is allowed. The impugned order dated 26.09.2024 is hereby set aside. Further, the matter is remanded back to the trial court to consider the application of the Petitioner under Section 311 of Cr.P.C. keeping in view the aforesaid judgments of the Hon’ble Supreme Court as well as this Court. In the event it is found that the P.Ws. 21 and 22 are required to be recalled for further examination and the evidence of such witnesses is essential for just decision of the case, then, the trial court shall not hesitate to exercise its power under Section 311 of Cr.P.C. However, in such eventuality, the trial court shall ensure that the entire process be completed in a time bound manner and shall also ensure that in the event such witnesses are recalled, they shall be examined and discharged on a particular date. Before exercising such power, the counsel for Page 6 of 7. the defence be asked to file a questionnaire consisting of questions likely to be asked to the witnesses on recall. 16. It is stated by Mr. Devasish Panda, learned counsel for the Petitioner that the case is posted today for hearing of final argument. In such view of the matter, learned counsel for the Petitioner is given liberty to file an affidavit before the trial court indicating the fact that the order dated 26.09.2024 has been set aside by this Court with certain directions. In such eventuality, the trial court shall wait for the certified copy of this order for a period of one week. 17. With the aforesaid observation and direction, the CRLMC
Decision
stands disposed of. ( Aditya Kumar Mohapatra) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 05-Oct-2024 18:52:24 Page 7 of 7.