Vibhutee Kumar Gupta vs State Of Odisha
2023 Latest Caselaw 8386 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK
                      CRLREV NO.343 OF 2023

         Vibhutee Kumar Gupta              ....                Petitioner
                                        Mr.S.C.Mohapatra, Sr.Advocate.

                                     -versus-
         State of Odisha                  ....            Opposite Party
                                                  Mr.D.K.Mishra, AGA


                   CORAM:
                   MR. JUSTICE D.DASH

Order                          ORDER
No.                           01.08.2023

  01.    1.     This matter is taken up through hybrid arrangement
         (virtual/physical) mode.

         2.     Heard.
         3.     Admit.

4. On consent of the learned Senior Counsel for the Petitioner and learned Counsel for the State; the Revision is heard on merit. Perused the judgments passed by the Courts below.

(D. Dash), Judge.

Order                                ORDER
No.                                 01.08.2023

 02.    1.      The Petitioner, by filing this Revision, has called in

question the legality and propriety of an order dated 17.06.2023 passed by the learned 1st Additional Sessions Judge, Rourkela in S.T Case No.57 of 2020.

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By the said order, the Trial Court has rejected the application filed by the Petitioner (accused) to examine two witnesses in his defence.

2. Mr.S.C.Mohapatra, learned Senior Counsel for the Petitioner inviting the attention of the Court to the reasons given by the Trial Court in refusing to allow the Petitioner to examine any of those two witnesses contends that the same are wholly untenable. It is submitted that merely because a person is cited as a witness from the side of the prosecution when he has not been examined by the prosecution, it is not impermissible for the accused to examine him in his defence. In this light, he further submits that the Trial Court has lost sight of the fact that had that witness been examined as prosecution witness, as he would have stated the true facts relating to the case, the prosecution has purposely withheld him from examination and thus that stands as the need for examining him as the defence witness to place the correct picture. As regards the other witnesses, it is submitted that the evidence which has come from the lips of the I.O. ought not to have been taken to be the substitute of the evidence of that witness as would come during his examination.

3. Mr.D.K.Mishra, learned Additional Government Advocate does not dispute the position that there is no legal bar for the defence to examine a person as defence witness merely because his name appears in the list of the prosecution witnesses but not examined. It is further submitted that in respect of the other witness, the Trial Court having thought of repetition of the same facts which have already come on record did commit no mistake in holding that

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the examination from the side of the defence would serve no purpose.

4. Taking into account the submissions made and on going through the impugned order, this Court is inclined to accept the submission of the learned Senior Counsel for the Petitioner and set aside the order impugned in the Revision. Accordingly, it is directed that the Trial Court would permit the Petitioner to examine those two witnesses as defence witnesses. It is hereby observed that the Trial Court for the purpose is at liberty to fix time frame and complete the exercise recording their evidence. In order to arrest delay, the Petitioner is directed to enter appearance before the Trial Court on 10.08.2023 to receive further instruction.

Issue urgent certified copy as per rules.

(D. Dash) Judge

Gitanjali

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 03-Aug-2023 18:42:38