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2017 DIGILAW 810 (ORI)

Alekha Chandra Jena v. Basanta Kumar Jena

2017-07-31

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Heard Miss. M. Chinmayee Patnaik, learned counsel for the petitioner and Mr. Manas Ranjan Sahoo, learned counsel for the opposite parties. 2. The petitioner Alekha Chandra Jena who is the complainant in I.C.C. Case No.37 of 2004 pending in the Court of learned S.D.J.M., Kendrapara has challenged the impugned order dated 18.10.2006 in allowing the petition under section 311 of Cr.P.C. filed by the opposite parties to recall P.Ws.1 to 3 for further cross-examination. 3. On perusal of the impugned order, it appears that P.Ws.1 to 3 were examined, cross-examined and discharged and thereafter, the prosecution case was closed, the accused statement was also recorded and thereafter, the case was posted for defence and argument and at that stage, a petition was filed by the accused persons to recall the witnesses P.Ws.1 to 3 for further cross-examination. It further appears that no specific questionnaires have been mentioned in the petition which was filed for recalling P.Ws.1 to 3. However, the learned Trial Court observed that for the interest of justice and for the just and proper decision of the case, he was inclined to allow the petition under section 311 of Cr.P.C. 4. Learned counsel for the petitioner contended that the order passed by the learned Trial Court in allowing the recall petition for recalling P.Ws. 1 to 3 at a belated stage was not proper. Learned counsel for the opposite parties on the other hand supported the impugned order and contended that for the just decision of the case, the learned Trial Court has got ample power to recall and re-examine any witness at any stage. 5. When a witness is examined, cross-examined and discharged, if any important questions have been left out by the defence to be put in the cross-examination or any important aspect comes to the notice of the defence at a later stage which would affect the credibility of such witness, it is the duty of the defence counsel to file an application under section 311 of Cr.P.C. immediately by bringing it to the notice of the learned Trial Court regarding the necessity of recalling the witness and also specifying the questions which are to be put to the concerned witness. If the same is not done at an earliest but at a belated stage without any proper explanation and such an application is filed without mentioning specific questionnaire, entertaining such application under section 311 of Cr.P.C. would not be in the interest of justice and there is every possibility that attempt will be made by the defence to delay the proceeding unnecessarily by playing all kinds of tricks. 6. In the present case, it appears that not only the three witnesses have already been examined, cross-examined and discharged but thereafter the prosecution case was closed and the accused statement was recorded and the case was posted for defence and argument. At that stage, when a petition was filed without mentioning specific questions to be put to the witnesses, entertaining such petition for recall is not conducive in the interest of justice. However, since the learned Trial Court has felt that for the interest of justice and for the just and proper decision of the case, the further cross examination of P.Ws.1 to 3 is necessary, without interfering with the same, the learned Trial Court is directed to ask the defence counsel to file specific questionnaires to be put to the P.Ws.1 to 3 in the further cross-examination. If such questionnaires are filed before the learned Trial Court, copy of the same shall be given in advance to the learned counsel for the complainant and thereafter, the case would be posted for further cross-examination of those three witnesses. The learned Trial Court is at liberty in not allowing any particular question from the questionnaire to be put to the concerned witness if it finds the same has got no relevance in the facts and circumstances of the case. 7. The entire exercise should be completed within a period of two weeks from the date of receipt of this judgment. Since it is a year old case and it is at the stage of defence and argument, short time shall be granted to the accused persons to adduce any defence evidence after further cross-examination of P.Ws.1 to 3 is over and thereafter, after hearing the argument from both the sides, judgment should be pronounced by the end of September 2017. 8. 8. It is made clear that if the specific questionnaires in respect of P.Ws.1 to 3 are not filed by the learned counsel for the defence within the time stipulated, no further opportunity shall be given and the case will proceed from the stage of defence. 9. With the aforesaid observation, the CRLMC is disposed of.