JUDGMENT

I. MAHANTY, J. — The State of Orissa has filed the present application under Section 482 Cr.P.C. seeking to challenge the order dated 20.2.2010 passed by the learned Adhoc Addl. Sessions Judge, FTC-II, Phulbani in Sessions Trial No. 18 of 2009 (ST 3/09-FTC-II) with a prayer to allow P.Ws. 17 and 18 to be recalled for further examination in course of the trial.

2.The brief facts leading to the present case is that on 23.8.2008, an F.I.R. was filed by one Brahmachari Madhab Chaitanya regarding the murder of Swami Laxmanananda Saraswati. Investigation was taken up by the police and Final Form was filed against the opposite parties. The police placed reliance on the evidence recorded under Section 161 Cr.P.C. of a number of witnesses including Mahasing Kanhar (P.W.17) and Birendra Kanhar (P.W.18), both the are residents of the district of Kandhamal and were cited to be examined as prosecution witnesses, since the investigation revealed that they had narrated crucial evidence leading to the homicidal death of Swami Laxmanananda as well as regarding the post-occurrence events pointing out to the involvement of the accused persons in the commission of the crime.

3.The investigation of the case had been handed over to the Superintendent of Police, CID-CB, Orissa, Cuttack vide P.S. Case No. 37 of 2008 was registered. On 13.11.2008, the statements of Mahasingh Kanhar (P.W.17) and Birendra Kanhar (P.W.18) were recorded under Section 161 Cr.P.C. by the Investigating Officer. On 30.1.2009, charge-sheet was filed against the accused-opposite parties, while keeping the investigation open under Section 173(8) Cr.P.C. On 17.3.2009, the Investigating Officer in a related case recorded the statement of one Prabhat Panigrahi under Section 161 Cr.P.C. and on 18/19.3.2009, the said Prabhat Panigrahi was killed. On 23.4.2009, the Investigating Officer recorded the statement of one Gopinath Lima under Section 161 Cr.P.C. in a related case and on 4.8.2009 the said Gopinath Lima was killed. On 5.9.2009 both Mahasingh Kanhar and Birendra Kanhar were examined as P.Ws. 17 and 18 respectively and resiled from their statements recorded under Section 161 Cr.P.C.

4.The prosecution alleged that on 10.1.2010 Mahasingh Kanhar (P.W.17) addressed a petition to the Superintendent of Police, Kandhamal and a similar petition was also addressed to the Superintendent of Police, Kandhamal by Birendra Kanhar (P.W.18) on 12.1.2010.

The extract of the petitions (translated from Oriya) are noted hereinbelow:

“To

The Superintendent of Police, Kandhamal

Sir,

I Sri Mahasingh Kanhar, S/o. Tasban Kanhar, Vill.-Kelani Sahi, P.S.-Kotagarh beg to inform you that I am one of the witnesses of Swami Laxmanananda Saraswati’s Murder case. During investigation of this case I have truthfully narrated the facts seen by me and known to me before the Investigating Officer. Before my deposition in the Fast Track Court, the supporters of the accused persons of this case threatened me not to depose the facts narrated by me to the I.O. and kept watch on me near the Trial Court. I was mortally afraid just before my deposition, so I could not narrate the facts known to me in my deposition. I denied to the public prosecutor in this respect. Since then I constantly regret for concealing the truth. Now also there is imminent danger to me and my family so I secretly came to you and inform this matter.

So I request you if proper protection is provided to me by police and opportunity be given by the Court I shall depose the truth.

Read over to me and I found to correctly recorded and signed.

Yours faithfully,

Sd/-

Mahasingh Kanhar

10.1.2010"

“To

The Superintendent of Police, Kandhamal

Sir,

I Sri Birendra Kanhar, S/o Jandura, vill.-Haripur, P.S.-Timudibandh beg to inform you that I have given my deposition as a witness in the murder case of Swami Laxmanananda in the Fast Track Court, before my deposition some people came to me and threatened not to depose the facts which I have narrated before police d