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2006 DIGILAW 325 (ORI)

Kandarpa Sahu @ Kupan Sahu v. State of Orissa

2006-04-24

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : Invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioner seek to assail the order dated 16.2.2006 passed by the Addl.Sessions Judge, Angul in C.T. (Sessions) No.211 of 2003. By the said order a petition filed under Section 311 CrPC praying to recall P.Ws. 1, 3 and 11 for further cross-examination by the accused-petitioners was rejected. 2. According to the petitioners they along with one Abhay Biswal are facing trial in the aforesaid C.T.(Sessions) Case for alleged commission of offences under Sections 147/148/302/294/323/506 IPC read with Sections 25 and 27 of the Arms Act. The trial of the case has commenced and the evidence on behalf of the prosecution has been concluded and after recording of accused statement the case is now posted for adducing defence evidence. At this juncture it was noticed that certain relevant questions could not be put to P.Ws.1, 3 and 11 due to oversight and a petition under Section 311 CrPC was filed by the petition¬ers to recall the aforesaid prosecution witnesses. The said peti¬tion, as stated earlier, has been rejected by the impugned order. The case has a chequered career, inasmuch as earlier all the five petitioners had filed a similar petition before the Court below under Section 311 CrPC to recall P.Ws 2, 3 and 11 for further cross-examination. The said petition having been rejected by the Court below by order dated 18.6.2005 they had approached this Court in CRLMC No.1591 of 2005. This Court after taking note of the submissions by order dated 9.11.2005 allowed the prayer of the petitioners, quashed the order dated 18.6.2005 of the Court below and directed to recall P.Ws. 2, 3 and 11 for further cross-examination. 3. Thereafter it appears Abhay Biswal, one of the accused in the said case who was not the petitioner before this Court in CRLMC No.1591 of 2005, filed another petition before the Court below under Section 311 CrPC with a prayer to recall the very same witnesses, i.e. P.Ws.2, 3 and 11 for further cross-examina¬tion on the ground that some of the statements made by them earlier could not be confronted to them at the time of their cross-examination. The said petition was rejected by the Court below mainly on the ground that the case was pending since 2003 and one of the accused was in custody and that opportunity to recall the said witnesses had already been given. Being aggrieved by the said order of the Court below, Abhay Biswal filed CRLREV No.798 of 2005 before this Court. This Court dismissed the said CRLREV observing that P.Ws. 2, 3 and 11 sought to be recalled for further cross-examination had already been recalled and cross-examined in consonance with the order of this Court, and a second petition by another accused in the same case for recalling the same witnesses once again was not just and proper. 4. It is needless to say that on earlier occasions the accused petitioners had prayed to recall P.Ws. 2, 3 and 11 but then in the latter petition they prayed to recall P.Ws.1, 3 and 11. The petition also contained the questions sought to be put. The Court below after hearing learned counsel for the accused and the public prosecutor and after discussing all the materials came to the conclusion that the entire exercise was meant only to delay the disposal of the sessions case and as accused Jadu Sahu was in custody since long, the petitioners who were his co-ac¬cused and were on bail, should not be allowed to cause delay in disposal of the case and rejected the petition. 5. Miss Ratho, learned counsel for the petitioners, submitted that certain important contradictions in the statements of the aforesaid witnesses sought to be recalled could not be confronted to them and, as such, it is very much necessary that the said witnesses should be recalled for further cross-examination and the questionnaire to be put to them was cata¬logued in the petition. She further submitted that as accused Jadu Sahu was also one of the petitioners who had filed the petition under Section 311 CrPC, the observation of the Court below that the other accused petitioners were adopting dilly dally tactics was misconceived. According to her, the accused-petitioners are facing trial for alleged commission of offences under Section 302 and other Sections of IPC besides Sections 25 and 27 of the Arms Act and they should be given all opportunity to defend themselves. According to her, the accused-petitioners are facing trial for alleged commission of offences under Section 302 and other Sections of IPC besides Sections 25 and 27 of the Arms Act and they should be given all opportunity to defend themselves. Non-recalling the witnesses sought by them to be further cross-examined will prejudice the petitioners spe¬cially in view of the fact that the questions sought to be put inadvertently could not be put to them during their cross-exami¬nation. Such omission according to Miss Ratho was only due to oversight and the prayer to recall the said witnesses was not aimed at filling up any lacuna, and/or to cause delay in disposal of the sessions case. 6. To fortify her submission, Miss Ratho relied upon a decision of the Supreme Court in the case of Rajendra Prasad v. Narcotic Cell, reported in AIR 1999 SC 2292 . In the said decision the Supreme Court has held :- “The contention that the Court cannot exercise power of re-summoning any witness of once that power was exercised, cannot be countenanced as a legal proposition, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final argu¬ments. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision.” 7. I have heard Miss Ratho, learned counsel for the peti¬tioners, and the learned counsel for the State at length. There is no ambiguity in the legal proposition that a party should not be permitted to file petition to recall a witness for further cross-examination with an avowed oblique motive of filling up any lacuna. If such petition is allowed at random that would not only cause prejudice to the concerned witness but also cause a dent to the prosecution case. But at the same time it should be kept in mind that the function of the criminal Court is to administer criminal justice and not to count the errors committed by the parties or to find out and declare such errors. There is differ¬ence between filling up a lacuna and to correct a mistake commit¬ted due to oversight. The conventional concept is that the Court should not be permitted to fill up a lacuna in the evidence. There is differ¬ence between filling up a lacuna and to correct a mistake commit¬ted due to oversight. The conventional concept is that the Court should not be permitted to fill up a lacuna in the evidence. But then as has been observed by the Supreme Court in the decision supra, what is meant by lacuna in a prosecution case has to be understood before disposing of the petition. A lacuna in prosecu¬tion is not to be equated with the fall out of an oversight com¬mitted by its counsel during trial either in producing any rele¬vant material or eliciting relevant answers from the witnesses concerned. The factor of human error should always be kept in mind by the Court while dealing with such eventuality. At the same time the Court should always bear in mind that recalling witnesses after they have been examined and cross-examined at length would cause irreparable harassment to them. Thus the discretion should be exercised considering the exigency of the situation. 8. Adjudging the case in the touchstone of the principles laid down in the decision of the Supreme Court supra, this Court feels that the paramount duty of the Court is always to take all steps to arrive at a just decision of the case. In a given case, the Court has to always appreciate the submission keeping in mind as to whether recalling a witness for further cross-examination would be essential for a just decision of the case. In the case at hand, as has been stated earlier, the petitioners had ap¬proached this Court in CRLMC No.1591/05 with a prayer to recall P.Ws.2, 3 and 11. The said prayer had been allowed by this Court and the aforesaid witnesses were recalled and further cross-examined. The questions sought to be put to the said witnesses by the defence were very much available to be put to them, but the defence did not do so. Such action by the defence, according to this Court, cannot be said to have been done through oversight. If a party did not avail the opportunity granted, it cannot be granted the same opportunity once again. But then as has been stated earlier, there was no prayer by the petitioners earlier to recall P.W.1 for further cross-examination. Such action by the defence, according to this Court, cannot be said to have been done through oversight. If a party did not avail the opportunity granted, it cannot be granted the same opportunity once again. But then as has been stated earlier, there was no prayer by the petitioners earlier to recall P.W.1 for further cross-examination. Therefore this Court feels that in the ends of justice P.W.1 alone may be recalled for further cross-examination, but then at the cost of the petition¬ers, and I direct accordingly. His further cross-examination shall, however, be confined only to the questions mentioned in the petition filed under Section 311 CrPC. With the aforesaid direction/observation the CRLMC is disposed of. CRLMC disposed of.