Orissa High Court
Ishwar Chandra Sahoo vs ) State Of Odisha ..... Opposite Parties on 28 July, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4644 of 2024
Ishwar Chandra Sahoo ..... Petitioner
Represented By Adv. -
Princepee Ray
-versus-
1) State Of Odisha ..... Opposite Parties
2) Santosh Kumar Dash Represented By Adv. -
Ms. B.K.Sahu, A.G.A.
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
28.07.2025
Order No.
03. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the petitioner as well as learned
counsel for the State. Perused the application as well as documents
annexed thereto.
3. The present application has been filed at the instance of the
accused petitioner whereby the petitioner seeks to invoke the inherent
power of this Court under Section 528 of the B.N.S.S. set aside order
dated 25.10.2024 passed by the learned S.D.J.M., Bhubaneswar in
1.C.C. Case No.2357 of 2015 and for further direction to the learned
trial court to recall P.W.-1(Complainant) for further cross-
examination.
4. On perusal of the record it appears that initially a notice was
issued to the Informant-Opposite Party No.2 by order dated
12.02.2024. The office note dated 12.02.2025 reveals that neither
A.D. nor unserved notice was returned from Opposite Party No.2.
Further, postal tracking report reveals that the item has been
delivered on 21.02.2025. Despite such valid service of notice none
appears on behalf of Opposite Party No.2.
5. In the present application the petitioner has challenged order
dated 25.10.2024 passed on an application filed by the petitioner
under Section 311 Cr.P.C. with a prayer to recall P.W.-1 for further
cross-examination. The order dated 25.10.2024 at Annexure-1
reveals that by detailed order the learned trial court has rejected the
application of the petitioner to recall P.W.-1. The learned trial court
while rejecting the application has observed that by filing the said
application under Section 311of the petitioner intends to further delay
the trial. Moreover, the application under Section 311 has been filed
six years after the closure of examination of P.W.-1. It has also been
indicated that the petitioner has been taking several adjournments.
Moreover, merely because the counsel who was conducting the case
earlier is dead, the same is not a ground to recall P.W.-1 for further
cross-examination. Learned trial court has also referred to the
judgment of the Hon'ble Apex Court in Indian Bank Association &
others vs. Union of India reported in 2014(5) SCC 590 wherein a
direction has been given for expeditious disposal of 138 of N.I. Act
cases. In the aforesaid factual backdrop, the learned trial court has
rejected the application of the petitioner to recall P.W.-1.
6. Learned counsel for the State-Opposite Party No.1 on the other
hand contended that the present case arises out of a complaint case.
Therefore, the State-Opposite Party has no role in the present
application filed under Section 528 of the B.N.S.S.
7. Having heard the learned counsels appearing for the petitioner,
on a close scrutiny of the order dated 25.10.2024 under Annexure-1,
this Court observes that the petitioner has filed the present
application being aggrieved by the order under Annexure-1 rejecting
his application under Section 311 of Cr.P.C. The Section 311 of
Cr.P.C. confers power on the trial court to summon material
witnesses or examine persons in attendance. The said provision also
provides for recalling and re-examination of any persons already
examined. However, such recall or re-examination is subject to a
rider that the evidence of such person is essential for the just decision
of the case. Thus, on a bare reading of Section 311 it is borne out that
if the evidence of person is essential to the just decision of the case
then he may be recalled at any stage of the inquiry, trial or
proceeding. Therefore, the delay in trial is a factor while considering
the application, however the same is not the sole fact basing upon
which the application under Section 311 Cr.P.C. is required to be
considered. The parameter that is required to be applied while
considering such application is that the evidence of such person is
essential for the just decision of the case. The P.W.-1 being the
complainant in the present case, the evidence of such witness is
definitely essential for the just decision in the case. No doubt the
petitioner has taken several adjournments to delay the trial, the
Courts are also equally responsible in granting such adjournments.
8. While considering the application of the petitioner this Court is
required to consider the same in terms of the requirement under
Section 311 Cr.P.C. which clearly provides that such witness can be
recalled at any stage of the trial and inquiry if the evidence of such
person appears to the Court that the same is essential to the just
decision of the case. Moreover, while conducting a trial, the trial
court is also required to keep in mind the sanctity and fairness of trial
which is of paramount consideration. In view of the aforesaid
analysis of the factual as well as legal position involved in the present
case, this Court is of the considered view that considering the fact
that the P.W.-1 is the complainant whose evidence undoubtedly
material for just decision in the case. Further, keeping in view the
concept of fair trial, this Court is inclined to grant another
opportunity to the petitioner. Accordingly, order dated 25.10.2024
under Annexure-1 is hereby set aside. Subject to petitioner paying a
cost of Rs.6000/- to the P.W.-1. In the event petitioner fails to pay
such cost, this order shall automatically stand revoked. It is further
directed that the P.W.-1 shall be recalled on a particularly date and
the petitioner shall be given an opportunity to cross-examine and
conclude such cross-examination on the very same day. No further
extension of time shall be granted for such cross-examination.
Further, taking into consideration the fact that the trial is of the year
2015, this Court directs the learned trial court shall do well to
expedite the trial and conclude the same as expeditiously as possible.
9. With the aforesaid observations and directions, the CRLMC
application stands disposed of.
( A.K. Mohapatra )
Judge
Rubi
