Ashok Majhi vs State Of Odisha
2023 Latest Caselaw 4463 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                            CRLMC No. 1926 of 2023

            Ashok Majhi                                ....           Petitioner
                                              Mr. S.K. Dwibedi, Advocate
                                      -versus-
            State of Odisha                         ....    Opposite Party
                      Mr. Prasanna Kumar Mohanty, Addl. Standing Counsel

            CORAM:
            THE CHIEF JUSTICE

                                        ORDER

Order No. 26.04.2023

1. 1. The challenge in the present petition is to an order dated 13th March, 2023 passed by the learned Additional Sessions Judge, Sundargarh in S.T. Case No.62/60 of 2013 rejecting the prayer of the Petitioner accused for summoning all the prosecution witnesses (PWs) on the ground that they could not be properly cross- examined by the defence lawyer.

2. The background is that by a judgment dated 16th August, 2019 a Division Bench of this Court while disposing of Criminal Appeal No.255 of 2017 ordered a retrial after setting aside the conviction and sentence of the Petitioner and remitted the case to the Court of Additional Sessions Judge, Sundargarh observing: "but the retrial would be taken up from the stage of defence."

3. It transpired that nearly two years thereafter on 25th October, 2021 the Petitioner accused filed a petition to call three witnesses on his behalf i.e. defence witnesses (DWs) and this application was allowed on 27th October, 2021. In spite of repeated summons, the

DWs did not appear and on 2nd November, 2022 NBW was issued against the said DWs which are yet to be executed.

4. It is only thereafter that the application was filed by the Petitioner accused under Section 311 Cr.P.C. for summoning of the PWs for further cross-examination. The trial Court has correctly noted that the said PWs were examined many years ago i.e. even prior to the trial Court judgment dated 29th March, 2017 convicting the Petitioner which judgment was reversed by this Court while remitting the matter to the trial Court for commencing the proceedings from the stage of defence evidence. Further, as correctly noted by the trial Court, the direction of this Court being very specific that the retrial should commence from the stage of defence evidence, there was no occasion for the trial Court to permit the Petitioner to again summons the PWs for further cross- examination. It is apparent that the said prayer would indefinitely delay the conclusion of the trial and defeat the very purpose for which the matter has been remitted to the trial Court by this Court.

5. The Court is unable to find any error having been committed by the learned trial Court in passing the impugned order dated 13th March, 2023. The petition is accordingly dismissed.

(Dr. S. Muralidhar) Chief Justice

SK Jena/Secy.