Orissa High Court

Md. Abdul Salam vs State Of Odisha & Anr. .... Opposite ... on 7 February, 2025

Author: S.K. Panigrahi

Bench: S.K. Panigrahi

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          IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLREV No.502 of 2024
        Md. Abdul Salam                      ....             Petitioner(s)
                                                  Mr. Devashis Panda Adv.

                                    -versus-
        State of Odisha & Anr.           ....               Opposite Parties
                                                     Mr. Sonak Mishra, ASC



                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI

Order                           ORDER
No.                            07.02.2025

05. 1. These matters are taken up through hybrid arrangement.

2. Heard learned counsels for the parties.

3. The present Criminal Revision has been filed by the Petitioner

challenging the order dated 05.09.2024 passed by the learned Ad-

hoc Additional District and Sessions Judge-cum-First Track-cum-

Special Judge, Kendrapara in G.R. Case No.26 of 2020 wherein he

has partly allowed the petition filed by the Petitioner and

directed to recall the informant on depositing of Rs.1,000/- and

refused to recall the victim to be cross-examined.

4. Learned counsel for the Petitioner submits that this Court has

earlier decided the similar issue in the judgment dated 04.03.2022

passed in CRLREV No.490 of 2021 (Pidika Sambaru-vrs.- State

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of Orissa & Anr.). Hence, he submits that this Criminal Revision

may be disposed of in the light of the judgment passed in the

case of Pidika Sambaru (supra).

5. Learned counsel for the Opposite Parties submits that he has

no objection, if this matter is disposed of in the light of the

judgment passed in the case of Pidika Sambaru (supra).

6. On perusal of the records and the judgment passed in the case

of Pidika Sambaru (supra), it appears that similar issue has

already been decided by this Court in the said judgment which

was disposed of on 04.03.2022. The relevant portions of the said

judgment are as follows.

"5. Section 311 of the Code provides:

"Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."

On the other hand, Section 33 (5) of the POCSO Act reads as under:

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"Procedure and powers of Special Court:

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the Court."

6. It is also contended that the intention behind enacting Section 33 (5) of the POCSO is only to ensure that in a genuine case the child victim is not harassed, but cannot be used as a shield by the trial Court to deprive the accused of a right of proper cross examination and therefore a right of fair trial.

7. It is mandatory for a Court to recall witness for further cross-examination if his evidence appears to be essential for just decision of the case. There is no bar for a court to recall a witness for further cross-examination. In Godrej Pacific Tech. Ltd. -v- Computer Joint India Ltd.1, which has rightly by referring to Section 311 of the Code, the Hon'ble Apex Court has held:

"The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall".

In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential

1 (2008) 11 SCC 108

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to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject.

There is a duty cast upon the court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts."

8. In Vimal Khanna vs. State2 the Court has held that denial of opportunity to cross examine the witnesses violates the Constitutional guarantee to an accused and vitiates the trial. Vimal Khanna (Supra) has been followed in Mohd. Gulzar v. The State (GNCTD)3, wherein after recording that the counsel for the accused was not present on three consecutive dates to cross examine the witness, the Court held that since the right of cross examination is a valuable right, the child's right under Section 33 (5) of POCSO Act has to be balanced with the

2 2018 SCC Online Del 11796 (DHC) 3 2018(4) JCC 2291 (DHC)

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aforesaid rights of the accused and thus permitted one more opportunity to the accused to cross examine the alleged victim. In B. C. Deva @ Dyava vs. State Of Karnataka the Court4 was clearly of the view that the power to recall a witness at the instance of either party to ensure justice is done is greater than the provisions set out in Section 33 POCSO Act. The provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law."

9. In that view of the aforesaid, this Court is of the view that cross-examination of the prosecution witnesses being an essential right of the accused, it is evident that non-cross- examination of the said witnesses will put the petitioner to prejudice. In such circumstances, it is not unjust to afford an opportunity to the petitioner to cross-examine P.Ws.1 to 3 by recalling them.

10. In view of the peculiar facts and circumstances of the instant case, the CRLREV is disposed of directing that the learned Additional District and Sessions Judge (FTSC), Jeypore shall recall P.Ws.1 to 3 and the department shall make all endeavours to produce P.Ws.1 to 3 as early as possible for cross-examination by the petitioner preferably within a period of one month from the date of

4 C. A. (Crl.) No.205 of 2001 (S.C.)

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production of certified copy of this order. After giving the petitioner an opportunity to cross- examine P.Ws.1 to 3, the trial court shall proceed for expeditious disposal of the case. It is further clarified that the Court shall take steps to recall the child witness at one go without disturbing him/her again and again."

7. In such view of the matter and taking into account the

judgment passed in the case of Pidika Sambaru (supra), this

Court is of the view that cross-examination of the prosecution

witnesses being an essential right of the accused, it is evident that

non-cross-examination of the said witnesses will put the

petitioner to prejudice. In such circumstances, it is not unjust to

afford an opportunity to the petitioner to cross-examine P.W.2 by

recalling her.

8. In view of the peculiar facts and circumstances of the instant

case, the CRLREV is disposed of directing that the learned

learned Ad-hoc Additional District and Sessions Judge-cum-First

Track-cum-Special Judge, Kendrapara shall recall P.W.2 and the