Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1118 (ORI)

Ch. Kiran Kumar v. State of Orissa

2017-10-09

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Heard Mr. Biswa Kumar Mishra, learned counsel for the petitioners and Mr. Prem Kumar Patnaik, learned Addl. Government Advocate for the State. 2. The petitioners in this application under section 482 Cr.P.C. have challenged the impugned order dated 03.05.2005 passed by the learned Sessions Judge, Koraput-Jeypore in C.T. No. 251 of 2003 in rejecting the petition under section 311 of Cr.P.C. filed by the petitioners in recalling P.Ws. 9, 10, 11 and 12 for further cross-examination with regard to the material objects. 3. The learned Trial Court after considering the petition filed by the petitioners and the contentions raised, has been pleased to observe that after going through the evidence of the witnesses P.Ws. 9, 10, 11 and 12, no material aspect has been left behind by the defence to be put to those witnesses and no useful purpose would be served in recalling those witnesses to put questions with regard to the material objects and therefore, holding that it is not essential for the just decision of the case, the petition was rejected. 4. Mr. Biswa Kumar Mishra, learned counsel for the petitioners contended that the petitioners are facing serious charges and the four witnesses to whom the petitioners intend to recall for further cross-examination have identified the material objects in Court which are the school bag, note book and tiffin box, water bottle etc. of the victim girl who was allegedly kidnapped by the petitioners and no questions have been put by the defence inadvertently on those material objects and therefore, if opportunity is not provided to the petitioners to put questions on the material objects proved by the prosecution then they will be seriously prejudiced. 5. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate opposed to such prayer and contended that there is no illegality or infirmity in the impugned order and just to delay the proceeding, the method has been adopted by the petitioners and therefore, no relief can be granted to them. In case of Godrej Pacific Tech. Ltd. -Vrs.- Computer Joint India Ltd. reported in (2008) 41 Orissa Criminal Reports 221, it is held as follows:- “8. In case of Godrej Pacific Tech. Ltd. -Vrs.- Computer Joint India Ltd. reported in (2008) 41 Orissa Criminal Reports 221, it is held as follows:- “8. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” 6. The issue involved in this case is whether the minor girl was kidnapped for ransom etc. or not as provided under section 364-A of the Indian Penal Code. The witnesses have identified some of the articles belonged to the victim girl and those were marked as material objects in this case. P.W.9 identified school bag (M.O.I), note book (M.O.II) and tiffin box (M.O.IV), P.W.10 identified school bag (M.O.I) and tiffin box (M.O.IV), P.W.11 identified school bag (M.O.I) and water bottle (M.O.V) and P.W.12 identified school bag (M.O.I). The petitioners have been afforded the opportunity to cross-examine all the witnesses and in fact they have exercised their right. P.Ws. 9, 10, 11 and 12 have also been cross-examined at length. I am of the view that merely because specific questions relating to material objects have not been put to the witnesses, the defence is prejudiced in any manner particularly when the issue involved can be effectively adjudicated without such cross examination. P.Ws. 9, 10, 11 and 12 have also been cross-examined at length. I am of the view that merely because specific questions relating to material objects have not been put to the witnesses, the defence is prejudiced in any manner particularly when the issue involved can be effectively adjudicated without such cross examination. The Court is not expected to do charity in allowing petitions for recall of witnesses for further cross examination after the party exercised his right of cross examination fully. It is only in exceptional cases that the Court would exercise such right on being satisfied that it is essential for the just decision of the case otherwise it would open the floodgate for filing such petitions causing unnecessary delay in disposal of the trial. If some relevant questions are left out to be put in the cross examination, recall petition should be filed immediately specifying such questions for the consideration of the Court. If due to the evidence of a witness who is examined afterwards or some material change in the circumstances, a recall petition is filed at a belated stage specifying further questions to be put in the cross examination, the Court has to consider the same in the facts situation keeping in mind the relevancy of such questions and its necessity in the just decision of the case. 7. After carefully going through the evidence of P.Ws. 9, 10, 11 and 12, I am of the humble view that recalling of the witnesses is not necessary for the just decision of the case. The four witnesses were examined on 21.09.2004 and not only the petition for recall was filed at a belated stage but there was necessity for recalling the witnesses and therefore, the learned Trial Court was quite justified in rejecting the petition and I find no infirmity or illegality in the impugned order and accordingly, the application under section 482 of Cr.P.C. being devoid of merits, stands dismissed. 8. Since it is a case of the year 2003, the learned Trial Court shall do well to expedite the proceedings in C.T. No. 251 of 2003 and conclude the same within a period of six months from the date of receipt of the order of this Court. The stay order passed on 07.06.2005 in Misc. Case No. 1310 of 2005 stands vacated.