Orissa High Court
Prasanta Kumar Jena vs ) State Of Odisha on 29 July, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2733 of 2025
Prasanta Kumar Jena ..... Appellant
Represented By Adv. -
Devashis Panda
-versus-
1) State Of Odisha ..... Respondents
2) Sankarsan Nayak Represented By Adv. -
Ms.Sasmita Nayak,ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
29.07.2025
Order No.
01. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard learned counsel for the Petitioner as well as
learned Additional Standing Counsel for the State. Perused
the CRLMC Application filed by the Petitioner as well as the
documents annexed thereto.
3. By filing the present CRLMC Application under
section 528 of BNSS, the Petitioner seeks to invoke the
inherent power of this Court to quash the order dated
15.05.2025 at Annexur-3 passed by the learned Additional
Sessions Judge, Anandapur in S.T.No.07 of 2022 thereby
rejecting the application filed by the accused-Petitioner
under section 311 Cr.P.C. to recall P.Ws.4,7 & 9 for their
further cross-examination.
4. Learned counsel for the Petitioner at the outset
contended that the Petitioner is facing trial in the above
noted S.T.Case for commission of offences punishable
under sections 498-A, 304-B, 302/34 of the Indian Penal
Code read with Section 4 of D.P.Act. He further contended
that taking into consideration the severity of the allegation
and the magnitude of punishment that can be imposed in
the event the Petitioner is found guilty, learned trial court
should have provided full opportunity to the accused-
Petitioner to prove his innocence by cross-examining the
prosecution witnesses. Further, he submitted that Section
311 Cr.P.C. confers wide powers on the trial court to
summon material witnesses which includes recall and re-
examination of any witness, who have already been
examined. While considering such an application for recall
and re-examine any such person, learned trial court shall
allow such application if evidence of such persons appears
to be essential to the just decision of the case. No doubt,
the power under section 311 Cr.P.C. is discretionary can
be exercised at any stage of enquiry or trial. In the instant
case, the accused-Petitioner moved an application under
section 311 Cr.P.C as he has realised that certain relevant
questions in the shape of contradiction have not been put to
the prosecution witnesses, who have already been
examined and cross-examined by the defence. In such view
of the matter, learned counsel for the Petitioner submitted
that recall of P.Ws.4, 7 & 9 is in the larger interests of
justice.
5. Learned Additional Standing Counsel for the State on
the other hand objected to the application filed by the
accused-Petitioner with a prayer to quash the order dated
15.05.2025 at Annexure-2. Learned Additional Standing
Counsel for the State at the outset contended that the trial
court has not committed any illegality while passing the
order dated 15.05.2025. He further submitted that the
power conferred under section 311 Cr.P.C. on the trial court
is discretionary in nature. Therefore, it is entirely open to
the trial court to exercise such power and the same is
dependent on the facts and circumstances of each case. In
the present case, learned trial court has examined the
application filed by the Petitioner under section 311 Cr.P.C.
and that he has recorded a categorical finding that absence
of a counsel is not a ground to entertain an application
under section 311 Cr.P.C. In the aforesaid context, learned
Additional Standing Counsel also refers to the judgment in
the case of State (NCT of Delhi) Vrs. Shiv Kumar Yadav
and another in (2016) 2 SCC 402. By referring to the
aforesaid judgment learned Additional Standing Counsel
submitted that recall can be allowed on the plea that
defence counsel was not competent and had not effectively
cross-examined the witnesses. He further contended that in
the present case the very purpose of filing of such
application by the accused-Petitioner is to prolong the trial.
On such ground, learned Additional Standing Counsel
contended that the application filed by the Petitioner is
unsustainable in law and accordingly, the same is liable to
be dismissed.
6. Having heard learned counsels for the respective
parties, on a careful analysis of the impugned order dated
15.05.2025 at Annexurre-3, this Court observes that while
the trial was on, P.Ws.4, 7 & 9 were examined by the
prosecution and they were also cross-examined by the
defence. On perusal of the order dated 15.05.2025, it
appears that the Petitioner is facing charge under sections
498-A, 305-B, 302/34 of the Indian Penal Code read with
Section 4 of D.P.Act. Therefore, there is no doubt that the
charges are very severe and that in the event the Petitioner
is found guilty he would be imposed with severe
punishment as prescribed under the Indian Penal Code.
Thus, the learned trial court should have considered the
application of the Petitioner in light of the aforesaid angle
and should have given an opportunity to the defence to
establish his innocence. No-doubt, it is well settled position
of law that mere absence or failure of the defence counsel
to cross-examine material witnesses is not at all a ground to
recall witness under section 311 Cr.P.C.
7. While considering the prayer of the present Petitioner
and analysing order dated 15.05.2025, this Court also
examined the aforesaid aspect that has been attached to
the application under section 311 Cr.P.C. at Annexure-3 to
the CRLMC Application. On perusal of the said application,
it appears that the Petitioner wants to further cross-examine
P.Ws.4, 7 & 9 on recall only for the purpose of confrontation
of some earlier contradiction. Therefore, it cannot be said
that the questionnaire framed by the Petitioner is irrelevant
and the same is not essential for just decision of the case.
While making this observation, this Court is conscious
about the fact that recall of prosecution witnesses would
cause prejudice to the Prosecution as well as witnesses
appearing on behalf of the Prosecution. However, such
prejudice can very well be compensated by imposing cost.
On the contrary if the defence is not permitted to cross-
examine the witnesses on the relevant issue, the same
would cause prejudice to the defence which will be far
greater than the prejudice that is likely to be caused to the
prosecution.
8. In view of the aforesaid analysis and legal position
and further keeping in view the principle underlined in
Section 311 Cr.P.C. i.e. if the evidence appears to be
essential for just decision of the case, this Court is of the
view that the trial court should have allowed the application
of the Petitioner to cross-examine the prosecution
witnesses instead of rejecting that application.
9. Accordingly, this Court has no hesitation in quashing
the order dated 15.05.2025 at Annexurer-3. Hence, the
same is quashed. The Petitioner is directed to appear
before the trial court within a week along with a copy of this
order. On such appearance, learned trial court shall recall
P.Ws.4, 7 & 9 for further cross-examination subject to
payment of cost of Rs.2000/- each to the P.Ws.4, 7 & 9. It is
further directed that such cross-examination shall be
concluded on a single day and the witnesses shall be
discharged on the same day.
10. With the aforesaid observation/direction the CRLMC
Application stands disposed of.
( A.K. Mohapatra)
Judge
RKS
Designation: AR-CUM-Senior Secretary
Location: High Court of Orissa
Date: 30-Jul-2025 17:55:55
