The right to fair trial includes the right of the accused to cross-examine witnesses for proper defense, and this right cannot be denied, especially in cases involving capital punishment.

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No.3351 of 2019

Rajib Gouda

….

Petitioner

Mr. D. Mohapatra, Advocate

-versus-

State of Orissa and another

….

Opp. Parties

Mr. M. Mishra, A.S.C.

CORAM:

JUSTICE G. SATAPATHY

Order No.

ORDER

06.01.2023

08.

1.

This matter is taken up through Hybrid Arrangement (Virtual

/Physical Mode).

2.

Mr. D. Mohapatra, learned counsel for the Petitioner submits

that although the case has been fixed today for defence evidence in

the trial Court, but the Petitioner wants to cross-examine P.W.21 for

his proper defence in this case and admittedly, the learned Trial Court

has refused to allow the recall petition of the Petitioner for further

cross-examine P.W.21. Learned counsel for the petitioner by relying

upon the decision in Shyamsundar Das Vrs. State of Orissa ;(2016)

1 OLR 613 submits that unless the accused-Petitioner in this case is

afforded with proper opportunity to cross-examine the witness, the

accused will not be able to defend his case properly and when the

offence alleged against the petitioner is visited with capital

punishment, fair trial demands for affording proper opportunity to the

accused, otherwise the accused-petitioner would not only be highly

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prejudiced but also would be deprived of defending himself. It is

further submitted that the accused-petitioner has filed an affidavit to

the effect that on the date when P.W. 21 will turn up for his cross-

examination, the accused-petitioner would complete his cross-

examination and there would not be any latches or negligence on the

part of the petitioner to linger the case. On the aforesaid submission,

learned counsel for the Petitioner prays to set aside the impugned

order and allow the accused-petitioner to cross-examine the witness

by way of allowing the recall petition of the Petitioner.

3.

On the other hand, Mr. M. Mishra, learned A.S.C. opposes

such prayer of the Petitioner and he inter alia submits that the

Petitioner is unnecessarily prolonging and lingering the case.

4.

Admittedly, the accused-petitioner is facing trial for

commission of offence punishable U/S. 449/302/394/120-B of IPC,

out of which 302 of IPC is visited with capital punishment and right

of fair trial founded on the principle of fair opportunity to be afforded

to the accused and failure to provide fair opportunity either to the

prosecution or the accused violates the fundamentals of statutory

right. Hence, without entering into the arena of rival submissions,

this Court by taking a holistic approach, set aside the impugned order

and allows the recall petition of the accused-petitioner. This Court

however, makes it clear that on the date when the P.W. 21 would turn

up, his further cross-examination shall be completed on the same day

and the witness will be discharged on the very day and for this

purpose, the learned trial Court would accordingly fix a date and take

sincere steps to procure the attendance of P.W.21, who is also

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directed to cooperate the Court in this regard and would in all

probability attend the Court on the date fixed. In case, P.W.21 avoids

to attend the Court on the date fixed without any valid and reasonable

ground, the learned trial Court is at liberty to take coercive steps for

his attendance in the Court.

5.

Accordingly, the CRLMC is disposed of.

Priyajit

( G. Satapathy)

Judge