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2019 DIGILAW 88 (ORI)

Saroj Kumar Biswal v. State Of Odisha

2019-02-04

S.PUJAHARI

body2019
JUDGMENT S. Pujahari, J. - Heard learned counsel for the petitioner and learned counsel for the State. 2. This application under section 482 of Cr.P.C., 1973 has been filed by the petitioner with a prayer to set aside the order dated 18.04.2018 passed by the learned Additional Sessions Judge-cum-Special Judge, Malkangiri in CT Case No. 123 of 2015 seeking recall of the witnesses Nos. 1 and 3. 3. Aggrieved by the order of learned Additional Sessions Judge-cum-Special, Malkangiri passed in CT Case No. 123 of 2015 on 18.04.2018 on a petition under section 311 of Cr.P.C., 1973 filed by the petitioner to recall PWs-1, 2 and 3 for further cross examination. This petition is under 482 of Cr.P.C. has been filed by the petitioner with a prayer to set aside the said order directing the court concerned to recall the aforesaid witnesses for further cross-examination inasmuch as the order passed refusing to recall the contrary to the settled position of law. 4. It appears from the record that the petitioner was facing trial in the aforesaid case as an accused for alleged commission of offence punishable under Sections 354, 354(A), 354(B) read with section 8 and 12 of Protection of Children from Sexual Offences Act and 3(xi) of SC and ST (Prevention of Atrocities) Act. 5. When the aforesaid witnesses are examined, the conducting senior counsel being absent during the cross-examination, the only question that was asked to the P.W.1 (the informant) and P.W.3 (the victim) by the junior counsel in cross-examination that the matter has since been compromised between the parties and as such, PW-1 (informant) and PW-3 the victim does not want to proceed with the matter. A question was also asked in cross-examination to PW-2, who is the scribe of the report indicating that he has no knowledge about the incident as he simply the scribe of the report as per the version of PW-1. Thereafter, a petition under section 311 of Cr.P.C., 1973 was filed to recall the said witnesses giving the questions thereon but the court taking note of the law laid down in the case of Rajaram Prasad Yadav vs. State of Bihar reported in, (2003) 14 SCC 461 held that the said witnesses having been cross-examined by the defence at length, the prayer made is devoid of merit. The reasoning given appears to be contrary to the materials on record inasmuch as virtually, there was no cross-examination of the said witnesses. In such premises, this Court is not in a position to accept the reasoning given to reject the prayer to recall the said witnesses. 6. In the case of Rajaram Prasad Yadav (supra), the Hon'ble Apex Court have held that the power under section 311 of Cr.P.C., 1973 should be resorted to only with the object of finding out the truth or obtaining the proper proof for such facts, which lead to a just and correct decision of the case. So also, it has been held therein that while exercising such discretion, exigencies of situation, fair play and good sense should be the safeguard, so also the court should bear in mind that no party in 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 inadvertence, the Court should be magnanimous in permitting no such mistakes to be rectified. 7. Keeping in mind the aforesaid, I am of the view that since in this case, the learned judge has refused the prayer made in a wrong premises to recall the witnesses in the aforesaid case, though traced the law in the case of Rajaram Prasad Yadav (supra) but applying the same improperly to examine. 8. Therefore, the impugned order cannot be sustained accordingly, the same is set aside and consequently, the trial court is directed to recall the said witnesses and allow the petitioner to cross-examine them on the point on which, their cross-examination is sought for, of course regulating such cross-examination by taking note of the fact that the questions desired to be put are relevant or not and also disallow the question, which are impermissible to be put to the witnesses and if so required to give chance to the prosecution for their re-examination and/ or cross-examination with permission, if the prosecution so wants taking note of the facts and circumstances of the case and evidence brought on record. Needless to say that the order in this regard must be passed within fifteen days of receipt of the copy of the order for recall of the said witnesses. 9. Needless to say that the order in this regard must be passed within fifteen days of receipt of the copy of the order for recall of the said witnesses. 9. However, it is made clear that if the petitioner did not co-operate with the court on appearance of the aforesaid witnesses on recall, he shall forfeit the benefit of this order and thereafter the court shall have no impediment to proceed with the matter in absence of the cross-examination of the aforesaid witnesses on recall in the manner known to law. With the aforesaid order, the CRLMC stands disposed of being allowed. Allowed.