The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4095 of 2024 Rasabihary Dash and another …. Petitioner(s) Mr. S. Panda, Advocate -versus- State of Odisha and others …. Opposite Party(s)
Legal Reasoning
Mr. S. R. Roul, ASC Ms. S. Jena, Advocate for the Informant CORAM: JUSTICE SIBO SANKAR MISHRA Order No.
Decision
ORDER 30.10.2024 01. 1. Heard Mr. Panda, learned counsel for the petitioner, Ms. S. Jena, learned counsel for the Informant and Mr. Roul, learned Additional Standing Counsel for the State. 2. The petitioners have invoked the jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 assailing the order dated 22.10.2024 passed by the learned Sessions Judge, Ganjam, Berhampur in S.T. Case No.57 & 58 of 2023. 3. The petitioners are facing trial in Sessions Trial Case No.57 & 58 of 2023 for the alleged offences punishable under Sections 302/120-B/109/34 of I.P.C. read with Sections 25/27 of the Arms Act. 4. After conclusion of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded and the petitioners were granted opportunity to lead their defence evidence. Page 1 of 5 The defence evidence has already been closed and the matter was set for final disposal. The trial Court head both the defence counsel and the prosecutor finally on 18.09.2024, 19.09.2024, 20.09.2024, 25.09.2024, 26.09.2024, 27.09.2024, 01.10.2024, 03.10.2024, 7.10.2024, 21.10.2024. When the matter was fixed for hearing on 22.10.2024, at that stage, the petitioners moved an application under Section 311 Cr.P.C. seeking to recall P.W.4 so as to put the following two specific questions:- (1) Column No.9 of the inquest report is filled by you? (2) Ext-3 F.I.R. is written by you? The petitioners have also reserved right to further question depending upon the answer to be given by the said P.W.4 to the above queries. 5. The learned trial Court vide impugned order dated 22.10.2024 rejected the application recording as under:- <It is submitted by learned defence counsel that he has left two questions to put to the witness (PW.4) Ajit Kumar Panda during cross-examination. Since two questions, which has been reflected in his petition are vital questions, he wanted to put those two questions along with some related questions to P.W.4. For which, prayer has been made to recall PW.4 for his further cross-examination, failing which, the accused persons will be seriously prejudiced. Learned Public Prosecutor, on the other hand vehemently objected to the petition of learned defence counsel by contending that only to linger the proceeding, learned defence counsel filed different petitions one after another. Hence, he prayed to reject such petition. Perused the record. Said witness Ajit Kumar (P.W.4) was examined way back on 24.05.2023. He has been Page 2 of 5 vividly cross-examined by learned defence counsel. Now when the record is posted for argument, after near about one & half years, the defence is coming up with the present application. The defence has taken several adjournments for defence evidence and then had taken several adjournments for arguments, on one ground or other. The questions have already put to PW.4 during his cross-examination. Hence, the petition filed by the learned defence counsel under Section 311 of the Cr.P.C. stands rejected being devoid of merit.= 6. Mr. Panda, learned counsel for the petitioners submitted that these two questions are very relevant to be put to P.W.4 in view of his evidence in examination-in-chief. He extensively read out the evidence of the P.W.4. He has also read out the evidence of the I.O. in the present case. Mr. Panda, learned counsel further submitted that it is no more res-integra that the application under Section 311 of Cr.P.C. is maintainable even at the stage of final hearing and before the pronouncement of the judgment. He contended that the trial Court has completely gone wrong by rejecting the application of the petitioners without appreciating the relevancy of these two questions sought to be put to the witnesses and the judgments occupying this field. 7. Ms. Jena, learned counsel for the Informant has vehemently opposed the prayer made by learned counsel for the petitioner and stated that the defence has been attempting to delay the conclusion of the trial on one pretext of the other. Even the petitioners had moved an application under Section 311 of Cr.P.C. for recalling of the I.O. at one stage. Ms. Jena, has read out the last proceeding recorded by the Court below on 28.10.2024 and submitted that the trial Court has expressed anguish over the matter Page 3 of 5 as the defence has been employing different ploy to get the matter postpone time and again. 8. I have perused the material placed before me and carefully gone through. First of all, the two questions framed by the petitioners to be put to the witnesses and its relevancy has been debated during the course of argument. Mr. Panda, learned counsel for the petitioners could not satisfy this Court regarding the relevancy of those two questions. It is an admitted fact on record that the inquest report as well as the F.I.R. has already been exhibited. Who has filled up the column-9 in the inquest report and who has scribed the F.I.R. could be elucidated from the document already exhibited. Moreover, relating to the said two queries, questions have already been put to the I.O. of the case at the time of his cross-examination. Related questions were also put to other witnesses regarding the same. Since much has already deliberated upon the aforementioned two questions, recalling P.W.4 so as to put to the said witness the same questions is not warranted particularly at the final stage of the trial. Moreover, the petitioners after partly arguing the matter stretching to about ten hearings, all of a sudden, moved the application for recalling the witness under Section 311 Cr.P.C. give impetuous to the suspected attempt of the petitioners to delay the conclusion of the trial. Therefore, the trial Court has rightly rejected the application. 9. I find no reason to disagree with the trial Court. Therefore, the petition is liable to be dismissed. Notwithstanding the dismissal of the present petition, the right of the petitioners to argue these issues at the time of final argument is not precluded rather it is expedient that the trial Court should specifically deal with these two Page 4 of 5 questions at the time of final hearing on the basis of the materials and evidence available on record. 10. With this observation, the CRLMC is disposed of. (S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 30-Oct-2024 17:36:10 Page 5 of 5