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2016 DIGILAW 1136 (ORI)

MATHURANANDA MALLICK v. STATE OF ORISSA

2016-11-22

S.K.SAHOO

body2016
ORDER S.K. Sahoo, J. - This revision petition has been filed by the petitioner Mathurananda Mallik to set aside the order dated 15.09.2016 passed by the learned Additional Chief Judicial Magistrate (Special), Cuttack in V.G.R Case No. 78 of 1997 in rejecting the petition filed by the petitioner who is an accused in the said case for recalling the P.W.7 and P.W.8 for cross-examination. 2. It appears that P.W. 7 Jamila Rasid Khan and P.W. 8 Rabindra Kumar Jena were examined on 16.03.2016 by the prosecution but their cross-examination was declined by the defence on that day. On that date, the accused was not present and the defence counsel filed a petition under Section 317 Cr P.C. on the ground that the petitioner was unable to come to Court due to his illness which was accordingly allowed by the Trial Court and accordingly in presence of the defence counsel, two witnesses P.W.7 and P.W.8 were examined. No application was filed on behalf of the defence on that day to grant time for cross examination the witnesses on the other hand the learned defence counsel declined to cross-examine those two witnesses. It appears that those two witnesses are the seizure witnesses The deposition copies have been annexed to the revision petition On 02.08.2016 an application under Section 311 Cr.P.C. was filed by the petitioner in the Trial Court through his counsel to recall P.W.7 and P.W. 8 on the ground that they have not been cross examined and he will be seriously prejudiced in the event he is deprived of his valuable rights of cross-examination The learned Trial Court vide impugned order dated 15.09.2016 has been pleased to observe that P.W.7 and P.W.8 are the witnesses to the seizure of one admission register by the Vigilance Police from the Head Master of Anyaspur Government M.E. School, Jajpur and by that time they were the Assistant Teachers of the said school. The petition dated 02.08.2016 was filed when the evidence from the side of the prosecution was closed. The learned Trial Court further observed that it is a case of the year 1997 and therefore, there is no reasonable and sufficient ground to recall P.W.7 and P.W.8 and accordingly rejected the petition being devoid of merit. 3. Learned counsel for the petitioner Mr. The learned Trial Court further observed that it is a case of the year 1997 and therefore, there is no reasonable and sufficient ground to recall P.W.7 and P.W.8 and accordingly rejected the petition being devoid of merit. 3. Learned counsel for the petitioner Mr. Ganesh Prasad Samal contended that on that particular day when P.W.7 and P.W.8 were examined, the Senior Counsel who was engaged by the petitioner was suffering from Malaria and he was not in a position to attend the Court for which the witnesses could not be cross-examined by the junior counsels. The learned counsel for the petitioner further submitted that the petitioner is ready and willing to bear the cost of the witnesses which would be imposed on him to recall P.W.7 and P.W 8 for the purpose of cross-examination. The learned counsel for the petitioner contended that though it is a case of the year 1997, the petitioner is no way responsible for the delay in the trial and in fact only nine witnesses were examined by the prosecution and the case was closed and one opportunity may be provided to the petitioner to cross-examine P.W.7 and P.W. 8. 4. Mr Sangram Das, learned Standing Counsel for the Vigilance Department on the other hand contended that the petition filed by the petitioner for recalling P.W.7 and P.W. 8 lacks material particulars and even reasons have not been assigned as to in what way the non-cross examination of P.W.7 and P.W.8 who are the witnesses to the seizure of the admission register would cause prejudice to the petitioner in any manner. He further contended that the petition does not make out a case that the recalling of P.W. 7 and P.W. 8 is necessary for the just decision of the case. The learned counsel for the Vigilance Department placed reliance in the case of State of Haryana v. Ram Mehar reported in (2016) 65 OCR (SC) 289, wherein it is held that the decisions which have used the words that the Court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean the "liberal approach" shall be the rule and all other parameters shall become exceptions. The foundation for recall, as is evincible from the application filed, must make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. 5. Considering the submissions made by the respective parties, there is no dispute that P.W.7 and P W.8 are mere witnesses to the seizure of admission register and they have proved the seizure list and the admission register which rave been marked as exhibits. 6. Learned counsel for the petitioner contended that at the time of cross-examination of P.W.7 and P.W.8, some questions regarding entries made in the admission register are to put to the witnesses. 7. The case is now posted for accused statement. P.W.7 and P.W.8 have not made the relevant entries in the admission register nor they have they stated that those entries were made in their presence. At the stage of defence, the petitioner can very well file appropriate application for summoning the author of the entries of the admission register or any other witness who can throw light on such entries and can lead evidence that entries are not correct. When the two witnesses are mere seizure witnesses and they are not competent witnesses on any other aspect regarding any particular entry in the admission register' and when they were examined in Chief on 16.03.2016 and no prayer was made by the defence on that day to defer their cross examination to some other date rather their cross examination was declined and about five months thereafter, the recall petition was filed when the evidence from the side of the prosecution is closed, I am of the view that no justifiable grounds have been made out by the petitioner to allow such petition. If such a petition is allowed, then there would be further delay in the disposal of the case which is of the year 1997. 8. Accordingly, I am of the view that the revision petition being devoid of merit, stands dismissed. Anything said or any observation made in this judgment shall not influence the mind of the learned Trial Court to adjudicate the Trial in accordance with law. 9. 8. Accordingly, I am of the view that the revision petition being devoid of merit, stands dismissed. Anything said or any observation made in this judgment shall not influence the mind of the learned Trial Court to adjudicate the Trial in accordance with law. 9. The CRLREV petition is disposed of accordingly. Final Result : Dismissed