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2005 DIGILAW 266 (ORI)

Gopinath Sahu v. State of Orissa

2005-04-20

A.K.PARICHHA

body2005
ORDER 20.04.2005 — Though the matter has been listed for admission, on the consent of the learned counsel for the parties, the same is taken up for final disposal. The petitioners are accused in ICC Case No.35 of 2000 of the Court of learned JMFC, Khurda for the offence under Sections 294, 506 IPC. During the course of trial of the said case, they filed a petition on 13.12.2004 to recall P.Ws. 1 and 2 for further cross-examination. The said prayer having been rejected, the petition¬ers have filed the present application under Section 482, Cr.P.C. for quashing the order dated 13.12.2004 passed by the learned JMFC, Khurda. Mr. P. S. Das, learned counsel for the petitioners submits that due to change of the conducting counsel for the petitioners in the aforesaid complaint case, P.Ws.1 and 2 could not be cross-examined and for that reason prayer was made to recall those witnesses for further cross-examination but the learned trial Court without appreciating the unavoidable difficulties of the petitioners rejected the said prayer. Mr. Das further submits that unless P.Ws.1 and 2 are recalled for further cross-examination, the case cannot be decided properly and the peti¬tioners would be prejudiced. Though notice was served on opposite party No.2 who is the complainant in ICC Case No.35 of 2002 in the Court of learned JMFC, Khurda, none appeared on his behalf. The impugned order shows that the petitioners declined to cross-examine P.Ws. 1 and 2 when they were in attendance and even on occasion when Pws. 1 and 2 had been recalled, the petitioners failed to cross-examine the said witnesses. In such avenue, the impugned order of the learned Magistrate rejecting the prayer of the petitioners cannot be strictly termed as illegal. Howev¬er, in a criminal trial the technical aspects should not be al¬lowed to over-ride the process of equitable justice as dispensa¬tion of justice and proper adjudication of the case is the prime object. In the present case, the previous counsel of the peti¬tioner could not appear in the Court due to his illness and for that reason another advocate was engaged and prayer was made to recall P.Ws.1 and 2. When the P.Ws. 1 and 2 are material witnesses in the case, the petitioners who are accused should have been given adequate opportunity to cross-examine them. When the P.Ws. 1 and 2 are material witnesses in the case, the petitioners who are accused should have been given adequate opportunity to cross-examine them. Keeping in view all the aspects in mind I am of the considered opinion that ends of justice would be best served by allowing the petitioners an opportu¬nity to cross-examine the P.Ws1 and 2. Accordingly the impugned order dated 13.12.2004 passed by the learned JMFC, Khurda in ICC No.35 of 2000 is quashed and the learned JMFC, Khurda is directed to recall P.Ws. 1 and 2 at the cost of the petitioners and allow them to be cross-examined further by the petitioners. With the aforesaid observation and direction, CRLMC is disposed of. UCC be granted on proper application. CRLMC disposed of.