IMPORTANT POINT
The right to a fair trial is paramount, and courts must ensure that all relevant evidence is considered, even if it requires recalling witnesses after significant delays.

JUDGMENT

Sashikanta Mishra, J.

The petitioner, who is one of the accused persons in S.T. Case No.27 of 502 of 1996 in the Court of learned 2nd Additional Sessions Judge, Bhubaneswar has filed the present application under section 482 of Cr.P.C. assailing order dated 08.02.2023 passed by the said Court in rejecting his petition to recall the I.O. of the case for further crossexamination.

2. The brief facts, relevant only for deciding the present case, are that the petitioner and three other persons are facing trial in the aforementioned case, which is a case of triple murder. As many as twenty one witnesses were examined from the side of the prosecution, out of whom P.W.-19 is the Investigating Officer. He was cross-examined and discharged way back on 15.09.1997.

3. Be it noted here that because of filing of certain applications by the co-accused persons before this Court the trial remained stayed for a long time i.e. from the year 20002022. On 27.09.2022, the present petitioner filed a petition under Section 311 of Cr.P.C. to recall P.W.-19 for further cross-examination. It was, inter alia, stated in the petition that certain questions material to the defence could not be put to P.W.-19 as the lawyer, who was representing the petitioner was ill.

4. The Court below, by the impugned order rejected the petition on the ground that the same had been filed after expiry of more than twenty six years at the stage of defence and that the intention of the accused was only to delay the disposal of the case.

5. Heard Sri D. Panda, learned counsel for the petitioner and Sri S. N. Das, learned Additional Standing Counsel for the State.

6. Sri Panda argues that a litigant cannot be allowed to suffer for the inability of his lawyer to cross-examine important witnesses at the relevant time because of the bonafide reason of his ill health. Sri D. Panda further submits that one N.N. Mishra was engaged as the defence counsel on behalf of the petitioner but on the date of crossexamination of P.W.-19, i.e. on 15.09.1997, the said counsel was absent because of a kidney ailment. As such, P.W.-19 was discharged after being cross-examined by the counsel appearing for the co-accused persons. But in so far as the present accused is concerned, the testimony of P.W.-19 has gone entirely unchallenged. According to Sri Panda, it affects the defence of the petitioner in the trial and also strikes at the principles of right to fair trial. Summing up his arguments, Sri Panda submits that the delay in disposal of the case, cannot in any manner, be attributed to the petitioner, inasmuch as the proceedings was stayed for a long time as per orders passed by this Court. In any case, it is the settled position of law that if the cross-examination is required for a just decision of the case, mere delay in disposal of the case cannot be a ground to disallow the same.

7. Per contra, Sri S. N. Das contends that filing of the petition under section 311 of the Cr.P.C. by the accused petitioner belatedly is nothing but a dilly-dallying tactic resorted by him to somehow delay the disposal of the case.

Mr. Das further contends that the petitioner had filed a petition on 03.09.2022 seeking recall of P.W.-6, which was rejected by the Court below.

Ultimately, the same was allowed as per order passed s Court on 11.11.2022 in CRLMC No.2752 of 2022. Even otherwise, the petitioner has not come up with the questions proposed to be asked to the Investigating Office.

8. Before proceeding to dwell upon the merits of the rival contentions as noted above, this Court would like to keep the law relating to recall of witness in the perspective. Section 311 of Cr.P.C. reads as follows:

311. Power to summon material witness, or examine person present. - Any Court may, at any stage of 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 Cou