Discretion under Section 311 Cr.P.C. must not exceed limits of necessity and fairness, avoiding extensive questioning that leads to roving cross-examination.

JUDGMENT :

Chittaranjan Dash, J.

1. Heard learned counsels for both the parties.

2. By means of this application, the Petitioner seeks to set aside the order dated 21.01.2022 passed by the learned J.M.F.C., Kendrapara in G.R. Case No.1579 of 2016 and the confirming order dated 05.07.2022 passed by the learned Sessions Judge, Kendrapara in Criminal Revision No.05 of 2022 under Annexure-6 and 7 respectively.

3. The background facts of the case are that the Petitioner, being the Informant, lodged FIR before the Sadar P.S., Kendrapara vide P.S. Case No.321 of 2016,arising out of G.R. Case No.1579 of 2016, against the Opposite Party No.2 for commission of offence under Sections 294 /506/427 IPC. The matter was henceforth brought to trial. The P.W.5 namely Prahallad Pradhan, who adduced his evidence on 02.05.2019 and cross-examined by the defence was required to be recalled for further cross-examination. To meet the same, an application under Section 311 Cr.P.C. was filed before the learned J.M.F.C., Kendrapara on 31.07.2019. The aforesaid application was appended with a questionnaire consisting of four questions as A, B, C, D. The learned court allowed the said prayer of the Petitioner and directed P.W.5 to face the cross-examination. On 03.09.2021, P.W.5 faced the cross-examination. After completion of the evidence, the Petitioner-accused moved an application praying the learned court to expunge the question and answer in respect to the evidence of P.W.5 beyond the question allowed for cross-examination recalling the witness. The learned court i.e. the S.D.J.M., Kendrapara, having heard the Parties, declined to expunge the said portion of the evidence. The Petitioner, being aggrieved by the said order dated 21.01.2022 passed by the learned S.D.J.M., Kendrapara, moved before the learned Sessions Judge, Kendrapara in Criminal Revision No.05 of 2022. The learned Sessions Judge, vide its order dated 05.07.2022,found the impugned order of the learned J.M.F.C., Kendrapara, appropriate and confirmed the same, dismissing the revision.

4. The learned counsel for the Petitioner, in course of hearing, submitted that the impugned orders suffer from serious infirmity in law and are therefore liable to be interfered with. It was urged that while allowing the application under Section 311 Cr.P.C., the learned court had confined the recall of P.W.5 only to the specific questionnaire annexed to the petition. However, during such recall, the witness was subjected to as many as twenty-four questions, far exceeding the seven questions originally permitted. This, it was contended, amounted to granting a fresh and roving cross-examination under the guise of recall, which is impermissible in law and has resulted in prejudice to the prosecution. The Petitioner accordingly prayed that the portion of the evidence recorded beyond the questionnaire be expunged from the record, as retention of the same would cause miscarriage of justice.

5. The learned counsel for the State, on the other hand, opposed the submissions advanced on behalf of the Petitioner and contended that the impugned orders passed by the courts below are just and proper and warrant no interference. It was argued that the purpose of Section 311 Cr.P.C. is to enable the Court to elicit the truth by permitting further examination of a witness if the same is essential for a just decision of the case. The additional questions put to P.W.5, though not verbatim from the questionnaire, were intrinsically connected to the issues raised therein and formed part of the same transaction, thereby falling within the scope of the recall. It was further contended that expunging such answers would cause grave prejudice to the accused by curtailing his op