Justice Sashikanta Mishra, in a petition to recall a witness under Section 311 CrPC, filed by an accused of three murders, noted that this case is a classic case where the question of belated justice is pitted against the right of the accused to a fair trial and concluded that this Court would rather lean in favor of the latter than the former so that the end result i.e., of rendering of justice to the parties is actually realized
BRIEF FACTS:
The petitioner is one of the accused in a triple murder case that has been going on since 1996. The present application filed u/s 482 was to set aside the order that denied further cross-examination of PW.-19 i.e. the investigating officer.
The cross-examination of all P.Ws was done and P.W.-19’s cross was done as well and he was discharged on 15.09.1997. The petition was filed by the present petitioner because certain material questions were not put by the lawyer (of the petitioner) to the accused as he was ill. The application was rejected by the court below on the basis that such was a tactic to cause a delay in proceedings.
Contentions of the Petitioner:
The learned counsel for the petitioner argued that t 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 Bona fide reason for his ill health. It was further submitted that with regard to the present accused, the testimony of P.W.-19 has gone entirely unchallenged and this affects the defense of the petitioner in the trial and also strikes at the principles of the right to a fair trial. It was also submitted that 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.
Contentions of the Respondents:
The learned counsel for the respondents contends that filing of the petition under section 311 of the CrPC by the accused petitioner is a delaying tactic. And in any case, the petitioner r has
not come up with the list of questions proposed to be asked to the Investigating Officer.
OBSERVATION OF COURT:
The Hon’ble Court before dwelling upon the merits of the case, noted the law relating to recalling of witness that is Section 311 of CrPC, according to which adequate power has been conferred upon the Court to recall any witness at any stage of the proceeding but with the rider that such evidence must be essential to the just decision of the case. The court then referred to the Supreme Court’s decision in Rajaram Prasad Yadav v. State of Bihar, where the law in this regard has been summarised by the court.
Then it was noted that it is a fundamental proposition of criminal law that the graver the crime, the higher the standard of proof required to establish it. It was then stated by the court that even though the accused is charged with triple murder, that does not make him a triple murderer unless he is held after the conclusion of the trial. Further, it was noted that the Right to a fair trial is a fundamental tenet of criminal jurisprudence and a valuable right guaranteed under Article 21 of the Constitution.
Then the court noted that during the cross-examination of the Investigating Officer by the co-accused persons, the present petitioner had gone unrepresented, which as stated earlier was because of a reason beyond his control, and the questions proposed to be put to the witness on recall are absolutely material for the defense of the accused-petitioner as per the court.
Thus, it was concluded by the court that the below court should not have been swayed away by considerations of delay only
JUDGEMENT OF COURT:
CRLMC was allowed and therefore impugned order dated-08.02.2023 was set aside and the court directed recalling of P.W.-19 i.e. the Investigating Officer u/s 311 of CrPC and even permitted him to appear virtually, as the situation seems and limited the cross-examination to four questions only.
CASE TITLE: Rudra Narayan Sahu versus State Of Odisha
CORAM: Justice Sashikanta Mishra
CASE NO. : CRMLC No. 947 of 2023
ADVOCATE FOR PETITIONE: M/s Devashis Panda, A.Mehta, A.AMishra, D.K.Panda & S.Panda
ADVOCATE FOR RESPONDENT: Advocate Mr.S.N.Das (Additional Standing Counsel)
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