The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.5294 of 2023 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) ----------- Jagadish Kumar Muni ……. Petitioner -Versus- State of Odisha and another ……. Opp. Parties For the Petitioner : Mr. Soura Chandra Mohapatra, Senior Advocate Mr. Saurav Tibrewal, Advocate For the Opp.Parties: Mr. Bijay Kumar Ragada Additional Government Advocate (For the Opposite Party No.1) Mr. Tanmaya Kumar Mohanty, Advocate (For the Opposite Party No.2) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA _________________________________________________________ Date of Hearing: 12.04.2024 : Date of Judgment : 16.04.2024 _________________________________________________________ S.S. Mishra, J. 1. In the present case, the petitioner is the son of the deceased. The F.I.R. in Gosaninuagaon P.S. Case No.87 of 2020 corresponding to G.R. Case No.980 of 2020 was registered against the accused persons. At the investigation stage, the petitioner being aggrieved by the manner in which the local police were investigating into the offences filed CRLMP 2 No.1472 of 2023 before this Court. The coordinate Bench of this Court vide order dated 27.09.2023 by a detailed judgment refused to transfer the investigation to the C.B.I. and directed the State Investigating Agency to continue with the further investigation, taking into account the concern of the petitioner and file the charge sheet. 2. The State police filed the charge sheet and the accused persons were put to trial. When the trial was going on, the accused moved an application under Section 311 Cr.P.C. seeking recall of P.W.18 vide application dated 15.11.2023. The accused in the said application proposed five questions to be put to P.W.18. The five questions read as under: (1) Can you tell when the murder of Muni Babu had taken place ? (2) Had you spoken with Sankar over Mobile Phone on 13.06.2020 and 14.06.2020 night ? Did you met with Sankar and Rupesh ? (3) Whatever you have deposed before the Hon’ble Court and earlier before the Police and Magistrate at the instance of police out of fear, what have you got to say ? Page 2 of 8 3 (4) Before you gave statement before the Magistrate whether the police had shown any documents and allowed you to read the documents regarding the present case ? (5) were you examined by the police in connection with this case ? Learned trial Court vide order dated 01.02.2023 allowed the application of the accused and permitted recall of P.W.18 and directed the trial Court to allow the defence to put the questionnaires as mentioned above to the said witness.
Legal Reasoning
3. The prosecution vehemently opposed the application. The objections have also been recorded in the impugned order. However, the application under section 311 Cr.P.C. was allowed by recording the fact that P.W.18 was examined and cross-examined in detail and he had also deposed under section 164 Cr.P.C. which is marked as Ext.P-31. 4. Learned trial Court recorded that the deposition of P.W.18 in the Court is consistent with his statement made under section 164 Cr.P.C. Despite that the application for recalling the said witness has been allowed. The petitioner being the son of the deceased has challenged the Page 3 of 8 4 said order dated 01.12.2023 passed by the learned 3rd Addl. Sessions Judge, Berhampur in S.T. Case No.111 of 2023. 5. Mr. Soura Chandra Mohapatra, learned Senior Counsel appearing for the petitioner has relied upon various judgments of the Hon’ble Supreme Court to satisfy the Court that he being the son of the deceased has locus standi to question the order impugned in the present case. Primarily, he relies upon the judgment of the Supreme Court in the case of Jagjeet Singh and others vs. Ashish Mishra alias Monu and another reported in (2022) 9 SCC 321. He relies upon paragraphs-22, 23 & 24 of the said judgment which read as under: It cannot be gain said that the rights of a victim under “22. the amended CrPC are substantive, enforceable, and are another facet of human rights. The victim’s right, therefore, cannot be termed or construed restrictively like a brutum fulmen. We reiterate that these rights are totally independent, incomparable, and are not accessory or auxiliary to those of the State under the CrPC. The presence of “State” in the proceedings, therefore, does not tantamount to according a hearing to a “victim” of the crime. 23. A “victim” within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/she has a legally vested right to be heard at every step post the occurrence of an offence. Such a “victim” has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that “victim” and “complainant/informant” are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a “victim”, for even a stranger to the act of crime can be an “informant”, and similarly, a “victim” need not be the complainant or informant of a felony. Page 4 of 8 5 The above stated enunciations are not to be conflated 24. with certain statutory provisions, such as those present in the Special Acts like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where there is a legal obligation to hear the victim at the time of granting bail. Instead, what must be taken note of is that: First, the Indian jurisprudence is constantly evolving, 24.1. whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged. Second, where the victims themselves have come 24.2. forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses.” He also argued that he has been prosecuting the case from the beginning being dissatisfied with the investigation and keenly following the prosecution. Under the mandate of Section-301 Cr.P.C., he is even entitled to assist the prosecution. 6. Mr. Mohapatra further submits that P.W.18 who was recalled by the accused is an acquaintance of the accused. The accused has 15 criminal antecedents. Therefore, to demolish the evidence already came on record through the said P.W.18, the accused is seeking recall of the witness. It cannot be ruled out that the accused would influence the said witness and turn the witness to be a hostile witness one under coercion. Page 5 of 8 6 This aspect of the matter has not been considered by the Court below. Mr. Mohapatra further contends that an application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defense, or to the disadvantage of the accused, or to cause serious prejudice to the defense of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. In the present case, the learned Court below has clearly stated that the application has to be allowed since the defense failed to put some questions due to “inadvertence” which clearly highlights that the subsequent testimony is only to fill up the lacuna in the previous deposition obviously by inserting pressure on the recalled witness i.e PW 18. 7. Mr. Ragada, learned Addl. Government Advocate appearing for the opposite party No.1-State submits that he too is aggrieved by the impugned order. He supports the contentions raised by Mr. Mohapatra, learned Senior Counsel appearing for the petitioner. 8. Mr. Tanmay Kumar Mohanty, learned counsel appearing on behalf of the opposite party no.2. He in support of the impugned order submits that the learned trial Court has rightly allowed the application, in Page 6 of 8 7 view of the fact that five questions enumerated in his application under Section 311 Cr.P.C. are relevant for the just decision of the case. Learned trial Court has evaluated the relevancy of the five questions and then allowed the application. He further submits that being the accused, the opposite party no.2 has unfretted right to defend himself. His right to defend the prosecution definitely has a superior right, as his liberties are at stake. Therefore, no illegality could be found from the impugned order. In that view of the matter, he prays that no interference should be given to the petitioner, who is the son of the deceased. 9. I have heard learned counsels for both the parties at length and I am of the considered view that the petitioner being the son of the deceased, is entitled under law to question the impugned order particularly for the reasons that he has been prosecuting the case right from the beginning and for the fact that the prosecution also joins the issue with him while challenging the order impugned herein. 10. I have perused the application and the questionnaires proposed to be put to P.W.18. It is a fact on record that P.W.18 was examined and cross-examined, thereafter he was discharged. His testimony before the court found to be in consistent with the statement he has made under section 164 Cr.P.C. In the application, nothing is contended by the Page 7 of 8 8 accused as to why in the first available opportunity he has not put those questions to the witness. The questionnaires supposed to be put to the witnesses according to this Court are also not relevant and the same questions could be put to other witnesses as well. Therefore, recalling the PW 18 is not justified on the facts of the present case.
Decision
11. Therefore, the impugned order is not sustainable. Accordingly, the impugned order dated 01.12.2023 passed by the learned 3rd Additional Sessions Judge, Berhampur, Ganjam in S.T. Case No.111 of 2023 is set- aside. 12. The CRLMC is allowed accordingly. ……………… S.S. Mishra (Judge) Orissa High Court, Cuttack The 16th April, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 16-Apr-2024 18:14:57 Page 8 of 8