Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 78 (ORI)

Pradip Kumar Dash v. State of Orissa (Vig. )

2017-01-17

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. This application under section 482 of Cr.P.C. has been filed by the petitioner challenging the impugned order dated 09.10.2012 passed by the learned Special Judge (Vigilance), Bolangir in C.T.R. No. 14/62 of 2003-07 in allowing the petition under section 311 of Cr.P.C. filed by the Special Public Prosecutor (Vigilance) in recalling P.W.3 Bhaskar Patra, the complainant in the case for cross-examination. The said case arises out of Sambalpur Vigilance P.S. Case No.67 of 2002 in which charge sheet has been submitted against the petitioner under sections 13(2) read with 13(1)(d) and section 7 of the Prevention of Corruption Act, 1988. 2. Mr. Trilochan Nanda, learned counsel for the petitioner contended that P.W.3 was examined in chief, cross-examined and discharged on 24.10.2011 and he fully supported the prosecution case and even denied to the suggestion put forth by the defence that there was no demand or acceptance of the bribe money by the accused. Learned counsel while placing the statement of P.W.3 given before the learned Trial Court submitted that some statements have been brought out in the cross-examination of P.W.3 that he and the accused (petitioner) were residing inside the Laltikra Colony and the wife of the petitioner was dealing with Amway articles and P.W.3 had purchased SA8 Gelzyme, Glister toothpaste and brush worth of Rs.498/-from the wife of the petitioner and he had not paid that amount to the wife of the petitioner or to the petitioner until he lodged the report. He contended that to nullify the effect of such statements elicited in the cross-examination, the prosecution deliberately filed a petition under section 311 of Cr.P.C.. 3. It is mentioned in the petition under section 311 of Cr.P.C. filed on 26.09.2012 that during cross-examination, the complainant introduced a new story which is inconsistent with the prosecution case and Vigilance investigation and therefore, cross-examination of P.W.3 from the side of the prosecution is very much necessary. The petition filed by the Special P.P. (Vigilance) was allowed by the learned Trial Court and P.W.3 was summoned to appear before the Court for cross-examination and the date was fixed to 26.11.2012. It appears that the impugned order was challenged before this Court and on 20.11.2012, this Court in Misc. Case No. 2212 of 2011 stayed further proceeding of the Trial Court. It appears that the impugned order was challenged before this Court and on 20.11.2012, this Court in Misc. Case No. 2212 of 2011 stayed further proceeding of the Trial Court. Learned counsel for the petitioner submitted that in view of the stay order, P.W.3 has not been cross-examined on recall as per the impugned order dated 09.10.2012. 4. Learned counsel for the petitioner contended that cross-examination is a valuable right of the accused and when the defence has brought out some material facts in its favour in the cross-examination, the prosecution cannot be allowed to nullify the effect such cross-examination by recalling such witness otherwise the whole purpose of cross-examination would be lost. It is further contended by the learned counsel for the petitioner that no specific questionnaire has been indicated in the petition under section 311 Cr.P.C.. Therefore, the learned Trial Court should not have entertained such a petition and allowed the same. Learned counsel further submitted that when the witness P.W.3 has specifically denied to the suggestion put forth by the defence counsel that the amount which is outstanding against him was paid to the petitioner on the date of occurrence, there was no justification on the part of the prosecution to file a petition under section 311 Cr.P.C. Mr. Prasanna Kumar Pani, learned Addl. Standing Counsel for the Vigilance Department supported the impugned order and contended that there is no illegality or impropriety in the impugned order and the Criminal Misc. Case should be dismissed. 5. Considering the submissions made by the learned counsels for the respective parties and on perusal of the petition filed under section 311 of Cr.P.C., it is found that prayer has been made to recall P.W.3 and allow the prosecution for cross-examination. Section 137 of the Evidence Act defines expressions (i) Examination-in-chief, (ii) Cross-examination and (iii) Reexamination of a witness. Section 138 of the Evidence Act regulates the order of examinations in which a witness can be examined-in-chief, cross-examined and re-examined. After cross-examination of a witness by the adverse party, the party who called the witness can re-examine the witness and such reexamination shall be directed to the explanation of matters referred to in cross-examination. If the new matter is introduced in re-examination with the permission of the Court, the adverse party may further cross-examine the witness upon that matter. After cross-examination of a witness by the adverse party, the party who called the witness can re-examine the witness and such reexamination shall be directed to the explanation of matters referred to in cross-examination. If the new matter is introduced in re-examination with the permission of the Court, the adverse party may further cross-examine the witness upon that matter. Section 154 of the Evidence Act confers a discretionary power on the Court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing Court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, the Court can permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. In such an event, the Court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The Court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief. (Ref: A.I.R. 1964 S.C. 1563, Dayabhai Chhaganbhai Thakker Vs. State of Gujarat). In case of Rajaram Prasad Yadav Vs. State of Bihar reported in A.I.R. 2013 S.C. 3081, it is held as follows:- “23. (Ref: A.I.R. 1964 S.C. 1563, Dayabhai Chhaganbhai Thakker Vs. State of Gujarat). In case of Rajaram Prasad Yadav Vs. State of Bihar reported in A.I.R. 2013 S.C. 3081, it is held as follows:- “23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Code of Criminal Procedure read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: a. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? b. The exercise of the widest discretionary power under section 311, Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. c. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. d. The exercise of power under Section 311, Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. e. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. f. The wide discretionary power should be exercised judiciously and not arbitrarily. g. The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. h. The object of Section 311, Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. i. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. i. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. j. Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. k. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. l. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. n. The power under Section 311, Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” 6. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” 6. On careful perusal of the evidence of P.W.3 as well as the petition under section 311 of Cr.P.C. filed by the prosecution, I am of the view that when the said witness has supported the prosecution case in his examination-in-chief and has also been cross-examined at length and he has even denied to the specific suggestions put forth by the defence counsel that there was no demand or acceptance of the bribe money by the petitioner and that the amount which was outstanding against him was paid to the petitioner on the date of occurrence, merely because some material facts have been brought out in the cross-examination relating to the business transaction of the wife of the petitioner with P.W.3, it cannot be a strong and valid ground to entertain such a petition under section 311 of Cr.P.C. filed by the Vigilance P.P. The contention raised by the learned Special P.P. (Vigilance) that a new story has been introduced in the cross-examination by the defence for which the cross-examination of P.W.3 by prosecution is necessary is not at all justified. The cross-examination which is a powerful and valuable weapon for the purpose of testing the veracity of a witness need not be confined to the facts which the witness testified on his examination-in-chief. There was nothing before the Trial Court that P.W.3 was not speaking the truth or exhibited an element of hostility to the prosecution. Merely because in an unguarded moment, he spoke something in the cross-examination which did not suit the prosecution, the Court should not have exercised its discretion to allow the prosecution to cross-examine P.W.3. The prosecution has not laid any foundation for seeking permission for cross-examining P.W.3. Such a petition was not filed soon after the end of cross-examination by the defence but almost about a year after the examination of P.W.3 was over. The legal obligation vested in the Court to exercise its discretion in entertaining such petition should be done in a judicious manner by proper application of mind keeping in view the attending circumstances and not in a routine or cavalier manner. The legal obligation vested in the Court to exercise its discretion in entertaining such petition should be done in a judicious manner by proper application of mind keeping in view the attending circumstances and not in a routine or cavalier manner. The petition filed by the prosecution was dearth of sufficient materials regarding necessity of cross-examination. By entertaining such an application under section 311 of Cr.P.C. which was neither for a just decision of the case nor for determination of the truth in the ends of justice, the learned Trial Court has practically hampered the valuable right of cross-examination of the defence. In view of the discussions above, the impugned order dated 09.10.2012 is not sustainable in the eye of law and the same is hereby set aside. Accordingly, the CRLMC application is allowed. It is made clear that this Court has not expressed any opinion on the merits of the case. The learned Trial Court is free to assess the evidence which would come on record and decide the guilt or otherwise of the petitioner while pronouncing the judgment. Since the case was instituted in the year 2002, the learned Trial Court shall do well to expedite the trial and conclude the same preferably within a period of six months from the date of receipt of this judgment.