Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Ori) 300

IN THE HIGH COURT OF ORISSA AT CUTTACK
ADITYA KUMAR MOHAPATRA, J.
Debendra Kumar Jain @ Debendra Jain - Petitioner
Versus
State Of Odisha - Opposite Party
CRLMC No.3450 of 2024
Decided On : 19-09-2024

Advocates:
Advocate Appeared:
For the Petitioner: M/s. Pratap Kumar Nayak, D. Mohapatra
For the Opposite Party : Mr. Debasish Nayak, A.G.A.

The court affirmed that the denial to recall a witness based solely on delay violates the accused's right to a fair trial, underscoring the importance of using Section 311 of the Cr.P.C. to access essential evidence.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Section 311 - Quashing of lower court order - Court found impugned order rejecting the application to recall a witness solely on delay unsustainable - Emphasized right to free and fair trial under Article 21 of the Constitution - Further emphasized that evidence essential for the just decision of the case can be recalled. (Paras 10-14)

(B) Criminal Trial - Fair Trial - Delay in recalling a witness cannot be sole ground to deny the right to a free and fair trial - Discretion to recall witness lies with the trial court, focusing on the essentiality of evidence for justice. (Paras 11-13)

Facts of the case:
The Petitioner sought to quash an order that rejected his application to recall a witness for further cross-examination, arguing that significant delay had occurred due to earlier stays in proceedings.

Findings of Court:
The rejection of the Petitioner’s application solely due to delay was deemed unsustainable; the right to a fair trial must prevail.

Issues: The key issue was whether the rejection of the application under Section 311 of the Cr.P.C. solely on grounds of delay was legally sustainable.

Ratio Decidendi: The court held that a fair trial takes precedence over delay, emphasizing the importance of recalling witnesses for just decision-making.

Result: Application allowed; impugned order set aside and matter remanded for reconsideration.

Table of Content
1. modification of case title and hearing procedures. (Para 1 , 2 , 3 , 4)
2. right to cross-examine key witnesses. (Para 5 , 6 , 7)
3. fundamental right to a fair trial emphasized. (Para 10 , 11 , 12 , 13)
4. rejection of application on grounding of delay is unsustainable. (Para 14)
5. remand to trial court with urgency for completion. (Para 15 , 16 , 17)

Judgment :

ADITYA KUMAR MOHAPATRA, J.

1.On the oral prayer made by the learned counsel for the Petitioner, he is permitted to correct the cause title of the Criminal Miscellaneous Case.

Accordingly, the corrected copy of the cause title of the Criminal Miscellaneous Case be uploaded by tomorrow.

2. Heard learned counsel appearing for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Party. Perused the application as well as the documents annexed thereto.

3. The present application has been filed by the Petitioner by invoking the inherent power of this Court under Section 482 of Cr.P.C. with a specific prayer to quash the order dated 22.08.2024 passed by the learned Additional Sessions Judge, Nuapada in S.C. Case No.105/16 of 2003.

4. On perusal of the impugned order dated 22.08.2024, it appears that the accused-Petitioner filed an application before the learned trial court under Section 311 of the Cr.P.C. to recall P.W.19 for further cross-examination, as the said prosecution witness could not be examined by the accused earlier.

5. Learned counsel for the Petitioner, at the outset, submitted that although the case is of the year 2003, however, further proceeding in the matter was stayed by this Court at the instance of some of the co-accused persons who had earlier approached this Court, and as a result the trial could not take place for several years. Finally, when the trial was resumed in the year 2022, the Petitioner moved an application to recall the P.W.19 for further cross- examination by defence, who had already been examined earlier. He further contended that earlier when the P.W.19 was being examined by the court, an application was submitted by the Petitioner, at the time of his cross- examination, thereunder seeking time to cross-examine P.W.19. The said application was, however, rejected arbitrarily. Thereafter, the matter was carried to this Court.

6. Learned counsel for the Petitioner further submitted that after the trial was recommenced, the Petitioner moved an application under Section 311 of Cr.P.C. on the ground that P.W.19 is a material witness and non-examination of said witness would cause serious prejudice to the accused- Petitioner. Learned trial court, vide order dated 22.08.2024, while considering the application of the Petitioner under Section 311 of Cr.P.C. has observed that the time petition of the Petitioner was earlier heard and rejected. The Learned Trial Court has also specifically mentioned in the said order dated 22.08.2024 that while opportunity to cross-examine was given to the Petitioner, the P.W.19, Prahallad Rai Gupta, was examined but his cross-examination was closed with a remark ‘NIL’. Learned counsel for the Petitioner further submitted that only ground for rejection of his application under Section 311 of Cr.P.C. is delay in making such application.

7. On perusal of the impugned order dated 22.08.2024, it appears that no further ground has been shown in the impugned rejection order except the ground of delay in making such application under Section 311 of Cr.P.C.

8. In the aforesaid context, learned counsel for the Petitioner referred to the judgment of this Court in Rudra Narayan Sahu v. State of Odisha , reported in 2023 (I) OLR 948. In the above noted reported case, an application was made under Section 311 of Cr.P.C. after expiry of more than 26 years. Such application of the Petitioner having been rejected on the ground of delay, the Petitioner in the reported case approached this Court by filing an application under Section 482 of the Cr.P.C. The learned coordinate