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2018 DIGILAW 243 (ORI)

Niranjan Parida v. State of Odisha

2018-03-12

S.K.SAHOO

body2018
JUDGMENT : S. K. SAHOO, J. This is an appeal under section 13 of the Odisha Protection of Interests of Depositors (In Financial Establishments) Act, 2011 (hereafter ‘OPID Act’) filed by the appellants Niranjan Parida and his wife Smt. Lilu Manjari Parida challenging the impugned order dated 28.11.2017 passed by the learned Presiding Officer, Designated Court (OPID Act), Cuttack in Interim Application No.02 of 2015 in rejecting the petition filed by the appellants for recalling of P.W.2 Bhabani Sankar Khuntia for further cross-examination. It appears from the order sheet annexed to the appeal memo that on the hazira filed by the Special Public Prosecutor, P.W.2 was examined in chief for the first time on 18.04.2017 and cross examined in part by the counsel for the appellants and the case was deferred to 05.05.2017 for further cross-examination and P.W.2 was directed to remain present in Court on that day. P.W.2 remained present on 05.05.2017 and he was further cross examined and then the case was adjourned to 16.05.2017 for further cross-examination. The cross-examination of P.W.2 resumed on 16.05.2017 and it was adjourned to 20.06.2017. On 20.06.2017 P.W.2 was not present for cross-examination for which the case was adjourned to 07.07.2017. On 07.07.2017 though P.W.2 was present but since the Presiding Officer was on leave, the case was adjourned to 22.07.2017. On 22.07.2017 though the learned counsels for the both the sides were present and hazira was filed but it is not clear whether P.W.2 was present for cross-examination, however the case was adjourned to 04.08.2017 for further cross-examination of P.W.2. Thereafter, on the next four dates i.e. on 04.08.2017, 19.08.2017, 06.09.2017 and 11.10.2017, the learned Special Public Prosecutor filed time seeking petitions and accordingly, time was granted and the case was posted to 31.10.2017. On 31.10.2017 P.W.2 was present for his further cross-examination. Due to ailment of the learned counsel for the appellants, a time seeking petition was filed. The learned Presiding Officer posted the case to be taken up at 2.00 p.m. and since at 2.00 p.m., the learned counsel for the appellants was not present, the evidence was closed and P.W.2 was discharged and the case was posted to 06.11.2017 for taking evidence from the side of the opposite parties (appellants). On 06.11.2017 the appellants filed a petition to recall P.W.2 for further cross-examination and on the said petition, the impugned order dated 28.11.2017 was passed. On 06.11.2017 the appellants filed a petition to recall P.W.2 for further cross-examination and on the said petition, the impugned order dated 28.11.2017 was passed. While dismissing the petition for recall of P.W.2, the learned trial Court held that in the interest of justice, the prayer for recall cannot be allowed. Mr. Susanta Kumar Dash, learned counsel appearing for the appellants contended that for the first time after the examination of P.W.2 started on 18.04.2017, time was sought for on 31.10.2017 on behalf of the appellants on the ground of ailment of their counsel and on all the previous dates, when P.W.2 was examined in chief or cross-examined, the learned counsel appearing for the appellants cooperated with the learned Court and therefore, it cannot be said that there was any deliberate laches on the part of the appellants or their advocate in filing a time seeking petition on 31.10.2017 to adjourn the case for further cross-examination of P.W.2. It is further submitted by the learned counsel for the appellants that P.W.2 is the Investigating Officer and he is a most vital witness and unless full opportunity is provided to the appellants to cross-examine him, there is likelihood of serious prejudice being caused to the appellants. It is further contended that on many important aspects, further cross-examination of P.W.2 is necessary and the learned Court was not justified in rejecting the petition for recall of P.W.2. Learned counsel for the appellants relied upon the decision of this Court in case of Rose Valley Hotels and Entertainments Ltd. Vrs. State of Orissa reported in (2018) 69 Orissa Criminal Reports 474 and also of the Hon’ble Supreme Court in case of Foodworld Super Markets Ltd. Vrs. Shri H. Sujan Singh reported in (2009) 14 SCC 359 . Mr. Bibekananda Bhuyan, learned Addl. Government Advocate on the other hand supported the impugned order and submitted that since the witness (P.W.2) was coming 250 kms. away and time was given to the counsel for the appellants to get ready for cross-examination and at 2.00 p.m. the learned counsel did not appear nor any step was taken for cross-examination of P.W.2, there was every justification on the part of Presiding Officer to discharge P.W.2. away and time was given to the counsel for the appellants to get ready for cross-examination and at 2.00 p.m. the learned counsel did not appear nor any step was taken for cross-examination of P.W.2, there was every justification on the part of Presiding Officer to discharge P.W.2. In case of Rose Valley Hotels and Entertainments Ltd. (supra), it is held as follows:- “Therefore, the inherent power under section 151 of C.P.C. can be exercised by the Court suo motu and also at the instance of either party to recall a witness. Whether a prayer to recall a witness would be accepted or not would depend on facts and circumstances of each case and no straitjacket formula can be laid down for such purpose. The Court by invoking the inherent power can recall a witness and allow cross-examination of such witness at any stage of a suit by the other side. The recall application has to be dealt with carefully and not in a mechanical and casual manner and it cannot be dismissed without assigning cogent reasons. The judicial discretion of the Court should be aimed in giving full opportunities to the parties to present their case. If an application is filed by any of the parties assigning good and genuine reasons to recall a witness for cross-examination and showing as to why the witness could not be cross-examined on the date fixed or to put some relevant questions which have been inadvertently left out during cross-examination, the Court should apply its mind to the averments taken in such application and decide as to whether the application has been filed just to linger the case or it has some genuine grounds. If the Court feels that such an application is a bonafide one and recall of the witness for the purpose mentioned in the application is necessary in the interest of justice, the Court should exercise its judicial discretion to allow such petition otherwise there will be perversity of justice.” In case of Foodworld Super Markets Ltd. (supra), it is held as follows:- “5. After exchange of pleadings, the Suit was posted for evidence of the plaintiffs. The plaintiff (P.W.1) has filed his affidavit by way of his evidence. On the request made by learned counsel for the defendant, the matter had been adjourned twice for cross-examination of plaintiff (P.W.1) and finally, it was posted on 28.2.2008. After exchange of pleadings, the Suit was posted for evidence of the plaintiffs. The plaintiff (P.W.1) has filed his affidavit by way of his evidence. On the request made by learned counsel for the defendant, the matter had been adjourned twice for cross-examination of plaintiff (P.W.1) and finally, it was posted on 28.2.2008. Since the learned counsel for the defendant was not present before the court, when the matter was called out, the learned trial Judge has closed the evidence of the plaintiff and has posted the matter for the evidence of the defendants, if any. xx xx xx xx xx 9. We have heard learned counsel for the parties to the lis. We have also carefully perused the affidavit filed with the application (I.A. No. 2) to recall the order dated 28.2.2008, discharging P.W.1 from cross-examination. In our considered view, the explanation offered by the defendants appears to be not only satisfactory and also bonafide. This aspect of the matter is not properly appreciated both by the trial court and the High Court. In our view, the foreclosure of the defendants right to cross-examine the plaintiff (P.W.1) has resulted in grave prejudice to the right of defence of the defendant/appellant herein. Therefore, we cannot sustain the impugned orders.” Learned counsel for the appellants filed the certified copy of the orders dated 12.01.2018 and 16.01.2018 wherein it is indicated that evidence from the side of the appellants was also closed during pendency of this appeal and no witness has been examined on behalf of the appellants and the matter was posted for argument. When a submission was made by the learned counsel for the appellants in that aspect, on 05.02.2018 in Misc. Case No.133 of 2018, an order was passed directing the learned Presiding Officer, Designated Court not to proceed with the argument. Considering the submissions made by the learned counsels for the respective parties and after going through the order sheet of the Designated Court and the citations placed by the learned counsel for the appellants, it cannot be said that there was any deliberate laches on the part of the appellants in seeking time on 31.10.2017 for further cross-examination of P.W.2 on the ground of ailment of the learned counsel for the appellants. The observation of the learned Court that prayer for recall of P.W.2 will not be in the interest of justice was not proper in the facts and circumstances of the case rather depriving the appellants full opportunity of cross-examination of P.W.2 will result in causing serious prejudice which will not be in the interest of justice. Before taking a hasty decision and closing the evidence of P.W.2 and discharging P.W.2 on that day even without passing any order on time seeking petition was quite unjustified. The learned Court should have at least perused the previous order sheets particularly in respect of the commencement of the evidence of P.W.2 till that date to find out whether there was any laches on the part of the appellants. At best some cost could have been imposed on the appellants while granting time on their petition for adjournment. Therefore, I am of the view that the learned Presiding Officer, Designated Court was not justified in discharging P.W.2 and closing the case of the petitioner on 31.10.2017 and also rejecting the recall petition filed by the appellants for further cross-examination of P.W.2. In the light of forgoing discussions, I am of the considered view that the impugned order dated 28.11.2017 in rejecting the petition for recall of P.W.2 cannot be sustained in the eye of law and accordingly, the same is hereby set aside. The learned Presiding Officer, Designated Court, OPID Act, Cuttack is directed to recall P.W.2 and give an opportunity to the appellants for further cross-examination. It is stated by the learned Addl. Government Advocate that P.W.2 will be produced before the learned Presiding Officer, Designated Court, OPID Act, Cuttack on 17.04.2018. On that day the learned counsel for the appellants shall not seek for any adjournment for cross-examination of the witness and if the cross-examination is not over on that day, the case would be taken up on the next day. After the closure of the cross-examination, opportunity shall also be afforded to the appellants to adduce their evidence, if any. Since the case is of the year 2015, the learned Presiding Officer, Designated Court shall do well to expedite the matter and after the appellants adduce their evidence, hearing the argument from both the sides, pass the order in accordance with law. With the aforesaid observation, the Criminal Appeal is disposed of. Since the case is of the year 2015, the learned Presiding Officer, Designated Court shall do well to expedite the matter and after the appellants adduce their evidence, hearing the argument from both the sides, pass the order in accordance with law. With the aforesaid observation, the Criminal Appeal is disposed of. A free copy of the judgment be handed over to the learned Addl. Govt. Advocate.