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2008 DIGILAW 663 (ORI)

JYOTIRANJAN SAMANTARAY v. STATE OF ORISSA

2008-08-07

P.MAHANTY

body2008
JUDGMENT : P. Mahanty, J. - Heard Mr. Sahoo, Learned Counsel for the Petitioner, and Mr. Pattnaik, learned Addl. Govt. Advocate. 2. This revision is directed against the order dated 10.07.2008 passed by J.M.F.C., Bhadrak in G.R. Case No. 691 of 1996 rejecting an application u/s 243 Code of Criminal Procedure 3. Learned Counsel for the Petitioner submits that the Petitioner along with others is facing trial in the aforesaid case under Sections 448, 323, 324, 427 and 34 Indian Penal Code. A petition was filed at the stage of defence u/s 243 Code of Criminal Procedure to recall P. Ws. 3 to 13, who had already been examined and cross-examined, on the ground that during examination and cross-examination of those witnesses the accused-petitioner had engaged an advocate of Bhadrak Bar to defend him, but by the influence of some other persons, he did not cross-examine those witnesses properly. Therefore, in the interest of justice he wants to recall those witnesses for further cross-examination. 4. Mr. Pattnaik, learned Add!. Government Advocate vehemently opposes the prayer on the ground that the petition was field at a belated stage after recording of the accused statement and at the time of defence. Apart from that, all the prosecution witnesses were examined since long and cross-examined by each of the accused persons and they were discharged. Sufficient opportunity was given to the accused-petitioner to cross-examine those witnesses. This is an year-old case of 1996 and no scope should be given to any party to protract the litigation. Lastly he submits that the revision is not maintainable since it arises out of an interlocutory order. 5. Perused the records. Section 243 Code of Criminal Procedure reads thus: 243. Evidence for defence.- (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. 5. Perused the records. Section 243 Code of Criminal Procedure reads thus: 243. Evidence for defence.- (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) If the accused, after he had entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under Sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial by deposited in Court. 6. From a bare reading of the above provisions, it is clear that at the stage of the defence, it is open to the accused to issue any process for compelling the attendance of a' witness for the purpose of examination/cross-examination and production of any document and other things. The Magistrate can pass an order of rejection only if the petition is made for the purpose of vexation or delay or for defeating the ends of justice. At the same time, the Court can pass an order to recall a witness only if it is satisfied that it is necessary to do so for the ends of justice. The cardinal principle of criminal law is that sufficient opportunity should be given to the accused to defend his case. 7. In view of the above, this Court directs the Petitioner to file a fresh application u/s 243 Code of Criminal Procedure with specific questionnaire within a period of two weeks from today. The cardinal principle of criminal law is that sufficient opportunity should be given to the accused to defend his case. 7. In view of the above, this Court directs the Petitioner to file a fresh application u/s 243 Code of Criminal Procedure with specific questionnaire within a period of two weeks from today. In the event such an application is filed, the Trial Court shall pass appropriate order recalling the witnesses at the cost of the Petitioner. 8. The CRLREV is accordingly disposed of. 9. Urgent certified copy of the order be granted as per rules. 10. CRLREV disposed of.