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2017 DIGILAW 386 (ORI)

Narayan Nayak v. State of Orissa (Vig. )

2017-04-10

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Heard Mr. Bijoy Kumar Behura, learned Senior Counsel appearing for the appellants and Mr. Sanjay Kumar Das, learned Standing Counsel for the Vigilance Department. 2. This appeal under section 17 of the Orissa Special Courts Act, 2006 has been filed by the appellants challenging the impugned order dated 30.03.2017 passed by the learned Authorised Officer, Special Court, Bhubaneswar in Confiscation Case No. 05 of 2011 whereby the petition filed by the appellants to recall the Investigating Officer (P.W.1) for further cross-examination and to defer the evidence of the appellants till the closure of further cross-examination of P.W.1, was rejected. 3. Mr. Behura, learned Senior Counsel contended that even though the cross-examination of P.W.1 was not over, the learned Authorised Officer abruptly closed the cross-examination of P.W.1 without the consent of the learned counsel appearing for the appellants and also closed the evidence from the side of State-Applicant and therefore, the valuable right of cross-examination has been frustrated and since it is disproportionate assets case, if sufficient opportunity is not given to the appellants, they will suffer serious prejudice. 4. Mr. Das, learned Standing Counsel for the Vigilance Department on the other hand opposed the prayer made by the learned counsel for the appellants and contended that the Investigating Officer has been cross-examined at length for several dates in the year 2012 and also in the year 2016 after disposal of Criminal Appeal No.294 of 2012. It is further contended that on the last occasion, the appellant no.1 Narayan Nayak approached this Court with a similar prayer in Criminal Appeal No.50 of 2017 and vide order 17.03.2017, this Court disposed of the Criminal Appeal directing the prosecution to produce the Investigating Officer (P.W.1) on 28th March, 2017 before the learned Authorised Officer for further cross-examination on recall and the appellant no.1 was directed to deposit the cost for recalling of the aforesaid witness. 5. Learned Standing Counsel for the Vigilance Department further submitted that it was stipulated in that order that no adjournment shall be granted to the appellant no.1 for the aforesaid purpose but the learned Trial Court may adjourn the case to any other date for cross-examination of the aforesaid witness on recall, if it thinks the same to be just and proper in the facts and circumstances of the case. 6. 6. Learned Standing Counsel for the Vigilance Department further submitted that in compliance of the order dated 17.03.2017, P.W.1 was produced before the learned Authorised Officer on 28.03.2017 and on that date also the learned counsel for the appellants cross-examined the Investigating Officer at length and thereafter, the learned Authorised Officer closed the cross-examination and therefore, the Authorised Officer has not committed any illegality in closing the evidence from the side of the State-Applicant and directing the appellants to adduce their evidence. 7. Learned counsel for the appellants on the other hand contended that though in pursuance of the order of this Court dated 17.03.2017 passed in Criminal Appeal No.50 of 2017 the Investigating Officer was cross-examined on 28.03.2017 but the cross-examination was not completed and the Presiding Officer left the dais and the case was adjourned to the next date and the counsel for the appellants remained under impression that it was adjourned for further cross-examination but he came to know subsequently that on 28.03.2017 the cross-examination was closed. It is contended that many more relevant questions on different aspects are to be put to the Investigating Officer who is the star witness of the prosecution. It is contended that in a disproportionate assets case, thorough cross-examination of the Investigating Officer is very much essential and the Presiding Officer should not have hastily closed the cross-examination without intimating the same to the learned counsel for the appellants which was not proper and justified and therefore, another opportunity should be granted to the appellants for further cross-examination of the Investigating Officer. 8. Section 311 of Cr.P.C. confers a very valuable power on the Trial Court to recall a witness already examined, if it feels the same to be essential for the just decision of the case. Rejection of such application without any finding that the evidence is not essential for the just decision of the case, is not proper. Whether the evidence is essential or not depends upon the facts of each case and it is a matter to be decided by the concerned Court. Merely because some questions remained to be put to a particular witness is not sufficient ground to recall the witness for further cross-examination or re-examination. Application for recalling a witness if made bonafide, should not be rejected on mere probability of further delay, in the disposal of the matter. 9. Merely because some questions remained to be put to a particular witness is not sufficient ground to recall the witness for further cross-examination or re-examination. Application for recalling a witness if made bonafide, should not be rejected on mere probability of further delay, in the disposal of the matter. 9. Considering the submissions of learned counsels for the respective parties, it appears that the case is of the year 2011 and the Investigating Officer has been cross-examined on several dates i.e., in the year 2012 and also in the year 2016 and after that, as per the orders of this Court in Criminal Appeal No.50 of 2017 on 28.03.2017 but considering the submission that some material questions have been left out which are required to be put to the Investigating Officer, for just decision of the case and in the interest of justice, I am of the view that it would be proper to give one more opportunity to the appellants for further cross-examination to P.W.1. 10. Accordingly, learned Standing Counsel for the Vigilance Department is directed to instruct the Investigating Officer (P.W.1) to appear before the learned Authorised Officer on 24th April 2017. The cost of summoning P.W.1 for further cross-examination shall be assessed by the learned Authorised Officer and the same shall be deposited by 19.04.2017 by the appellants. P.W.1 shall remain present before the learned Authorised Officer sharp by 11 O’ clock on 24th April 2017 and on that date, the learned Authorised Officer shall allow learned counsel for the appellants for further cross-examination of the Investigating Officer, if possible, during the first half on that day and if the cross-examination is not completed on that day, the case will be adjourned to the next day and similarly the Investigating Officer shall remain present by 11 O’ clock on each date before the learned Authorised Officer till his further cross-examination is over. It is stated by the learned Senior Counsel for the appellants that if day-to-day cross-examination of the I.O. is permitted in the first half of the day from 24th April 2017, the cross-examination would be completed by 27th April 2017. 11. It is stated by the learned Senior Counsel for the appellants that if day-to-day cross-examination of the I.O. is permitted in the first half of the day from 24th April 2017, the cross-examination would be completed by 27th April 2017. 11. It is made clear that if the Investigating Officer appears on 24th April 2017 or thereafter but the learned counsel for the appellants seeks for an adjournment for cross-examination, the same shall not be granted and the order passed by the learned Authorised Officer on 30.03.2017 shall stand confirmed. With the aforesaid observation, the Criminal Appeal is disposed of.