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2021 DIGILAW 116 (ORI)

Pawan Kumar Dhanuka v. State Of Odisha

2021-03-10

P.PATNAIK

body2021
ORDER This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 1. Heard Mr. Samir Kumar Mishra, learned counsel for the petitioner and Mr. Niranjan Moharana, learned counsel for the State Vigilance. 2. The petitioner, invoking under Section 482 of the Code of Criminal Procedure, 1973, has assailed the order dated 23.02.2021 passed under Section 311, Cr.P.C. in the proceeding under Section 7 of the Essential Commodities Act, 1955 by the learned C.J.M., Sonepur in G.R. Case No.21 of 2010 rejecting the application of the petitioner to recall the P.W.1, namely, Prabir Kumar Tripathy. 3. The brief facts of the case giving rise for filing of the instant application is that on 18.09.2018, the petitioner had filed a petition under Section 311, Cr.P.C. before the learned C.J.M., Sonepur to recall the P.W.-1 for his further crossexamination on the ground the witness Prabir Kumar Tripathy (P.W.1) informant of the case is not only a public servant but also resident of neighbouring village of the accused and previously posted at Dungripali Police Station. He knows the accused before the entangling him in this case for the reason best known to him. There are sufficient materials with the defense to satisfy the Court that the witness has adopted suppresio very and suggestion falsi in prosecuting the accused in this case. The contention of the petitioner is that while the P.W.1 claims his presence in the alleged premises with the 4. Deputy Commissioner of Sales Tax, Sambalpur in the relevant date, but has suppressed the fact in the F.I.R. as well as in his evidence as because he has foisted the case with an ulterior motive to send the petitioner behind the bar. In support his contention, the accused-petitioner has filed the certified copy of alleged F.I.R. on Tax Evasion Case No.48/2011-12, the seizure list, statement recorded by the STO Vigilance before the lower court. The petitioner filed the said petition under Section 311, Cr.P.C. to recall the witness, namely, Prabir Kumar Tripathy (P.W.1) for his further cross-examination on 18.09.2018. 5. Leaned counsel for the petitioner submitted that on confrontation of the aforesaid facts, it is highly essential for further cross-examination of P.W.1 at this stage. A petition under Section 311, Cr.P.C. confers enormous power on the learned court below to summon a witness or re-examine any person who had already been examined until the judgment of the case is delivered. Leaned counsel for the petitioner submitted that on confrontation of the aforesaid facts, it is highly essential for further cross-examination of P.W.1 at this stage. A petition under Section 311, Cr.P.C. confers enormous power on the learned court below to summon a witness or re-examine any person who had already been examined until the judgment of the case is delivered. The plenary power which the provision under Section 311, Cr.P.C. vested in the court is to discover truth. 6. Learned counsel for the petitioner further submitted that a petition under Section 311, Cr.P.C. was pending since 18.09.2018 before the learned C.J.M., Sonepur and lastly vide order dated 23.02.2021, the learned C.J.M. rejected the aforesaid petition under Section 311, Cr.P.C. in the proceeding under Section 7 of the Essential Commodities Act, 1955 in G.R. Case No.21 of 2010. 7. Learned counsel for the petitioner has challenged impugned order passed by the learned C.J.M., Sonepur on the ground that the learned court below has rejected the petition under Section 311, Cr.P.C. on the ground of delay. Being oblivious of the fact that the petition under Section 311, Cr.P.C. was pending for more than two years for consideration and the learned counsel for the petitioner submits that one valid date may be fixed by the learned court below without any delay. 8. Before adverting to the rival contention, it would be apposite to refer under Section 311, Cr.P.C. which reads as follows:- '311. Power to summon material witness, or examine person present- Any Court may, at any stage or any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.' 9. Learned counsel for the petitioner in support of his contentions relied upon the decision reported in (2019) 6 SCC 203 , in the case of Susanta Kum Mohapatra vrs. State of Orissa; reported in 2013(II) OLR 385 , 1992 Criminal Law Journal 4039, AIR 1858 Allahabad 439, 1982 Criminal Law Journal 2201, 2020 (I) OLR 280 . 10. Repelling the contentions of the learned counsel for the Vigilance objected to the prayer in the instant application. State of Orissa; reported in 2013(II) OLR 385 , 1992 Criminal Law Journal 4039, AIR 1858 Allahabad 439, 1982 Criminal Law Journal 2201, 2020 (I) OLR 280 . 10. Repelling the contentions of the learned counsel for the Vigilance objected to the prayer in the instant application. Learned counsel for the Vigilance submitted that recalling of P.W.1 after a long gap of eight years will not sub-serve the just decision of the case when the issues have already been addressed in the earlier deposition. Learned counsel for the vigilance further submitted that the accused-petitioner had not given any questionnaires of legal reasons which has not been dealt with and what are left out questions, the witness is to examine. The specific questionnaires is relevant to ascertain as to whether the same is essential for just decision of the case and an accused, who has exhausted the power of crossexamination after examining the same witness, will not be given opportunity of fiddle with the witness after closure of the evidence more specifically at the stage of judgment. It has further been submitted that the provision under Section 311, Cr.P.C. does not permit a party to use/abuse the same at his 'pleasure and leisure' under the garb of application of the same at 'any stage of trial' or on any ground/plea has already been addressed. Learned counsel for the Vigilance relied upon the decisions rendered in the case of Dara Singh @ Rabindra Kumar Pal and Others vrs. Republic of India; (2003) 26 OCR 124, Hon'ble Apex Court held that:- 'Para-11. After discussing the entire facts and submissions, the Sessions Judge has rejected the petition filed under Section 311, Cr.P.C., Admittedly, the prosecution and also the defence have concluded their evidence and the trial has progressed considerably inasmuch as the court in the midst of hearing the defence arguments. Though power is given to court to recall a witness for further cross-examination, yet such power has to be exercised with discretion and according to ordinary and legal course of criminal trial. Therefore, a court as a matter of fact should not recall a witness after the evidence is closed. An accused, who has exhausted his power of crossexamination should not be given an opportunity to fiddle with the witnesses after closure of evidence. Therefore, a court as a matter of fact should not recall a witness after the evidence is closed. An accused, who has exhausted his power of crossexamination should not be given an opportunity to fiddle with the witnesses after closure of evidence. Para-12 The discretion under Section 311, Cr.P.C. is limited and cannot be exercised at late stage of a case, that too at the stage of arguments. Even otherwise the court below has sacrosanctly followed the directions issued by this Court in CRLMC No.391 of 2003 and I do not find any error apparent on the face of the order. In view of the aforesaid settled position of law, I find that Sessions Judge has not acted illegally or with material irregularity and I am not inclined to interfere with the impugned order in exercising inherent jurisdiction at this stage.' 11. Learned counsel for the Vigilance further referred to Ratanlal vrs. Prahlad Jat; (2017) 9 SCC 340 , K. Sanjeendram vrs. Secretary, Thalakulathur Gram Panchayat; (2004) Crl. L.J. 555 Kerala, State of Haryana vrs. Ram Meher and Others; (2016) 8 SCC 762 ; Rajaram Prasad Yadav vrs. State of Bihar and another; (2013) 14 SCC 461 . 12. On perusal of the decisions cited at the Bar, power to exercise under Section 311, Cr.P.C. is only for strong and valid reasons. It should be with care and caution and aim of court is to discover the truth as it is often quoted wider the discretion, the greater is need of caution to exercise of judicious discretion. 13. On perusal of the aforesaid provisions, there is absolutely no doubt or debate that in order to arrive at just decision, the Court has plenary power to recall the witness for further evidence at any stage of the enquiry/trial. 14. On perusal of the impugned order dated 23.02.2021, it is quite crystal clear that the case was posted for judgment on 19.09.2018 and the petition under Section 311, Cr.P.C. was filed by the petitioner for recalling the P.W.1 on 18.09.2018, which is just one day prior to the judgment. Learned court has referred to the decision in a reported case 2004 Crl. L.J. 555; Kerala K. Sajeendram vrs. Learned court has referred to the decision in a reported case 2004 Crl. L.J. 555; Kerala K. Sajeendram vrs. Secretary Thalakulathur Grama Panchayat wherein it has been held that 'where a case is posted for judgment, trial of the case stands terminated within the meaning of Section 353, Cr.P.C. and the witness cannot be examined under Section 311, Cr.P.C.' Hon'ble Apex Court in (2019) 6 SCC 203 held as follows:- '10. It needs hardly any emphasis that the discretionary powers like those under Section 311, Cr.P.C. are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the court thereunder have been explained by this Court in several decisions. In Natasha Singh v. CBI, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under (SCC pp.746 & 748-49, para 8 & 15) '8. Section 311, CrPC empowers the court to summon a material witness, or to examine a person present at 'any stage' of 'any enquiry' or 'trial', or any other proceedings' under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. * * * * 15. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. * * * * 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercise judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311, CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage in the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be rendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC 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 great caution and circumspection. The very use of words such as 'any court', 'at any stage', or 'or any enquiry, trial or other proceedings', 'any person' and 'any such persons' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether summoning/recalling of the said witness is in fact, essential to the just decision of the case.' (emphasis in original) 'Chapter-XXVII, of the Code, 1973 more particularly, Section 353, Cr.P.C., deals with the judgment:-(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,- (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.' 15. The aforesaid provisions makes it indubitably clear when a case is posted for judgment, trial stands terminated. 16. When the matter is posted for delivery of judgment, it goes without saying that the trial has reached the final stage. The petitioner by his own conduct though guilty of latches and delay being attributable to him not being prompt in filing petition under Section 311, Cr.P.C. at the appropriate time but, learned trial court without delving into merits of the petition has only dwelled upon petitioner under Section 311, Cr.P.c. on the ground of delay. 17. After having given anxious consideration to the factual and legal aspects, this Court is inclined to remit the matter to learned C.J.M., Sonepur to decide the petition filed under Section 311, Cr.P.C. afresh on its own merit. 18. Accordingly, the impugned order dated 23.02.2021 is set aside and the matter is remitted back to the learned C.J.M., Sonepur to reconsider the matter afresh and pass reasoned order in accordance with law as expeditiously as possible without being influenced by any observation made hereinabove. 19. The CRLMC is disposed accordingly. 20. Urgent certified copy of this order be granted on proper application.