Jagabandhu Sethi & Others vs State Of Odisha & Others
2022 Latest Caselaw 2351 Ori

             HIGH COURT OF ORISSA: CUTTACK

                    CRLMC No.393 OF 2020
     (In the matter of an application under Section 482 Cr. P.C.)


 Jagabandhu Sethi & others                     .... Petitioners

                              Versus



 State of Odisha & others                      .... Opp. Parties



       For the Petitioners:    M/s.G.K.Mohanty,P.K.Panda,
                               D.Mishra,S.K.Gadanayak,
                               A.Garnayak, S.Sahoo &
                               A.R.Das, Advocates

       For the Opp.Parties: Mr.D.Mund, AGA
                            Mr. Debasish Samal, Advocate
                            for deceased wife


          CROAM:


               JUSTICE V.NARASINGH
               Date of Hearing - 08.04.2022
               Date of judgment -25.04.2022


V.Narasingh,J.

1. The petitioner along with Opposite Parties 2 and 3 are facing trial in S.T. Case No.38/11(25/2008) on the file of learned

Additional District & Sessions Judge, Bhadrak, arising out of Bhandaripokhari P.S. Case No. 131(15) of 2004 for commission of the alleged offices under Sections.147/ 148/ 323/ 325/ 294/ 307/354/302/149 of the I.P.C., read with Section. 3 of S.C. & S.T.(P.O.A) Act.

2. Being aggrieved by the order dated 27.01.2020 allowing the prayer of the prosecution for recalling P.W.13 Seta @Seeta Mallick in exercise of power under Section 311 Cr. P.C., the present CRLMC has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C.

3. Admittedly said Seta @ Seeta Mallick (P.W.13) was examined, cross-examined and discharged on 12.02.2016. On 10.12.2019 the Additional Public Prosecutor, Bhadrak filed an application under Sec. 311 Cr.P.C. to recall said P.W.13 and another for re-examination.

4. It was urged in the petition under Section 311 Cr.P.C. by the prosecution that since there are two accused persons with the same name Pratap Rout whose father's name differ, P.W.13 is required to be recalled to clarify the position for just decision of the case.

An objection was filed to the said petition by the present petitioners opposing the prayer for recalling P.W.13 after lapse of more than three years inter alia stating therein that it would amount to filling up of the lacuna by the prosecution and as such cannot be allowed.

On consideration of the contention of the parties by the impugned order, learned Court below allowed the prayer and held thus:

" xxx xxx. Hence, in the interest of justice and for clarification of doubt and to do justice between the parties, it is necessary to recall P.W.13. So far as the prayer to recall P.W.11 is concerned, it is rejected. Accordingly the petition dtd. 10.12.2019 is allowed in part. Recall P.W.13 for her further examination."

5. Learned counsel for the Petitioner has submitted that P.W.13 is the wife of the deceased Brahamananda Mallick was examined, cross-examined and discharged on 12.02.2016. Thereafter on 10.12.2019 petition was filed after a gap of three years for recall of P.W.13.

6. It is stated that such petition is being filed only to set at naught, the evidence of P.W.14 which ennures to the benefit of the accused. It is also further submitted that recalling of the witnesses is being resorted to somehow or the other linger the proceeding and is outcome of over jealousness of the prosecution to secure the conviction of the petitioners. In support of such contention, learned counsel for the Petitioners relied on a series of judgments of the Apex Court and also of the Delhi High Court. For brevity it is not necessary to place on record all the judgments cited.

7. The judgment reported in the case of Natasha Singh Vs. Central Bureau of Investigation(State), 2013 (5) SCC 741 and in the case of AG Vs. Shiv Kumar Yadav & Another, AIR 2015 SC 3501 relied upon by the petitioners are found to be most relevant to the case at hand.

The applicability of which will be dealt with in the subsequent paragraphs.

8. Per contra learned counsel for the State relied on the judgment of the Apex Court in the case of State Represented by The Deputy Superintendent of Police Vs. Tr. N.Seenivasagan, reported in 2021 SCC Online SC 212 has submitted that interest of justice warranted recall of P.W.13 and since the petitioners would have a right to further cross-examine, no prejudice shall be caused. It is further submitted that for clarity and for effective adjudication the learned court below has rightly allowed the prayer of the prosecution to recall P.W.13, who is none other than the wife of the deceased.

The law set out in the decision cited by the learned counsel for State is beyond cavil. The applicability thereof has to be judged in the context of given facts.

9. In the case of Natasha Singh (supra) while dealing with the approach of the court relating to consideration of a petition under Section 311 Cr.P.C., it has been stated that the determinative factor should be whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

10. In the case of AG (supra) the Apex Court has held that the guiding principles while considering the application under Section 311 of the Cr.P.C. is advancement of justice.

The prayer of the prosecution to recall P.W.13 is to be assessed on the touch stone of the above law laid down by the Apex Court relating to exercise of power dealing with an application under Section 311 of the Cr.P.C.

11. In the case at hand it can be seen that admittedly P.W.13 was examined, cross-examined and discharged on 10.02. 2016. After about 3 (three) years and 10 (ten) months an application was filed for recalling the witness on the ground that it will facilitate in indentifying the accused correctly.

12. Identification of an accused is one of seminal importance in a criminal case. Consequence of non-identification must ennure to the benefit of the defence. The effect of the statement so made by the prosecution witness, in the case at hand P.W.13, cannot be diluted by recalling the said witness and in the process the prosecution cannot be allowed to fill up the lacuna. The criminal trial casts the responsibility on the Presiding Officer to ensure that interest of the accused, the victim, who is represented by the prosecution in the system of dispensation of justice in this country are treated on an even scale.

In this context reference can be profitably made to the judgment of the Apex Court in the case of Rattiram Vs. State of M.P.(2012) 4 SCC 516. Dealing with fair trial the Hon'ble Supreme Court opined thus: (SCC p.534, para 39)

"39. ... Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritisim."

In the case of J. Jayalalithaa Vs. State of Karnataka,(2014) 2 SCC 401 it has held as under: (SCC p.414, para 28)

"28. Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the change imputed in a criminal case. Any breach or violation of public rights and duties adversely affect the community as a whole and it becomes harmful to the society in general."

In the case of Rajendra Prasad vs. Narcotic Cell, reported in (1999) 6 SCC 110, the Apex Court reiterated the principle referring to the law laid down in the case of Mohalal Shamji Soni vs. Union of India, reported in AIR1991 SC 1346, that the power of the Court is plenary to summon or even recall any witness at

any stage of the case if the court considers it necessary for a just decision.

13. By the impugned order while allowing the petition to recall P.W.13, learned court below though stated that the same is necessitated in the interest of justice and for clarification of doubt and to do justice between the parties, in the factual matrix of the case at hand, this Court is of the considered opinion that the same amounts to enabling the prosecution filling a lacuna regarding the identity of accused which in the given facts, would result in miscarriage of justice for which the impugned order is liable to be set aside .

14. Accordingly, the order dated 27.01.2020 passed by the learned Additional Sessions Judge, Bhadrak in S.T. Case No. 38/11(25/2008) arising out of Bhandaripokhari P.S. Case No. 131(15) of 2004 permitting to recall P.W.13 is hereby quashed.

15. Since the trial is pending from 2008, the learned trial court would do well to conclude the same within a period of six months from the date of receipt/production of the judgment.

16. The CRLMC is accordingly allowed.

17. There shall be no order as to costs.

V.NARASINGH,J

Orissa High Court, Cuttack Dated the, 25th April, 2022/Dhal