[Cites 7, Cited by 0]

Orissa High Court

M/S. Om Parivahan Pvt. Ltd vs State Of Odisha & Anr. .... Opposite ... on 6 April, 2026

Author: Sanjeeb K Panigrahi

Bench: Sanjeeb K Panigrahi

                                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                  CRLMC No.986 of 2026

                              M/s. Om Parivahan Pvt. Ltd.,
                              West Bengal & Anr.                  ....               Petitioner(s)

                                                                Mr. Sushanta Harichandan, Adv.
                                                           -versus-
                              State of Odisha & Anr.              ....        Opposite Party(s)

                                                                           Mr. Tej Kumar, ASC
                                                       Mr. Haripad Mohanty, Adv. (for O.P. No.2)

                                         CORAM:
                                         HON'BLE DR. JUSTICE SANJEEB K PANIGRAHI

                                                           ORDER

Order No. 06.04.2026

01.

1. This matter is taken up through hybrid arrangement.

2. By filing the present CRLMC, the Petitioners have prayed for

quashing the order dated 12.01.2026 passed by the learned J.M.F.C.

(Cognizance Taking-III), Cuttack in I.C.C. Case No.550 of 2018,

whereby the learned trial Court rejected the petition filed under

Section 311 Cr.P.C. by the Petitioners seeking recall of C.W.1 for

further cross-examination.

3. Heard.

4. Learned counsel for the Petitioners submits that while cross-

examining C.W.1, the conducting counsel inadvertently failed to put

certain material questions relating to the role of one Pawan Kumar

Date: 08-Apr-2026 18:59:32 Pachisia, a Chartered Accountant, at whose persuasion Opposite

Party No.2 agreed to extend the loan to the Petitioner's company. It is

further submitted that questions regarding his relationship with the

Petitioner's company as well as with Opposite Party No.2 and his

company, the financial status of Opposite Party No.2, the monetary

transactions and compliance with the provisions of the N.I. Act could

not be put. It is contended that denial of an opportunity to further

cross-examine C.W.1 would cause serious prejudice to the Petitioners.

5. Learned counsel for the Petitioners further contends that the

learned Court below ought to have granted another opportunity to

further cross-examine C.W.1, particularly when the Petitioners have

already refunded the cheque amount to Opposite Party No.2.

However, the learned trial Court, without proper application of

judicial mind, mechanically rejected the application. Hence, the

impugned order is liable to be quashed.

6. It is further contended that C.W.1, being the Managing Director of

the complainant company, has deposed on behalf of the company

and exhibited all relevant documents before the learned trial Court.

Since the fate of the case largely depends upon his evidence, and

material questions could not be put during cross-examination, the

Petitioners have been deprived of an effective opportunity to defend

their case. Therefore, the learned Court below ought to have allowed

the application for recalling the witness for further cross-examination.

7. Learned counsel for the Petitioners also submits that the finding of

the learned trial Court that the petition was filed to fill up lacunae is

erroneous. The proposed questions are essential for the just decision

of the case and denial of such opportunity would cause serious

prejudice to the Petitioners.

8. It is further contended that the law is well settled that a witness

may be recalled for further cross-examination at any stage of the trial

if it is necessary for a just decision of the case. Therefore, the learned

Court below ought not to have rejected the petition filed under

Section 311 Cr.P.C.

9. Learned counsel for Opposite Party No.2 vehemently opposes the

application, submitting that the witness has already been fully cross-

examined and that the present application has been filed at a belated

stage with a view to protract the trial.

10. Heard the learned counsel for the respective parties and perused

the available materials on record.

11. On perusal of the impugned order, the learned trial Court held

that the case arises out of proceedings under the N.I. Act and that

there is a legislative mandate requiring the Court to endeavour to

dispose of such cases within six months from the date of institution.

The present case pertains to the year 2018 and is presently posted for

arguments. Ample opportunity has already been afforded to the

Petitioners to cross-examine C.W.1. The learned Trial Court further

held that, with a view to delaying the proceedings and protracting

the trial, the Petitioners filed an application under Section 311 of the

Cr.P.C. seeking recall of C.W.1. Accordingly, the learned Trial Court

rejected the said application under Section 311 Cr.P.C. vide order

dated 12.01.2026.

12. The scope of section 311 of the Cr.P.C. is well settled. In Rajaram

Prasad Yadav v. State of Bihar1, the Supreme Court has held that:

"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:

17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?' 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re- examine any such person.

17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

(2013) 14 SCC 461

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

18. Keeping the above principles in mind, when we examine the case on hand, at the very outset, it will have to be stated that the High Court, while passing the impugned order [Suresh Prasad v. State of Bihar, Criminal Misc. Petition No. 12454 of 2010, order dated 9-12-2010 (Pat)] has completely ignored the principal objectives with which the provision under Section 311 CrPC has been brought into the statute book. As rightly argued by the learned counsel for the appellant, at the foremost when the trial was very much in the grip of the trial court, which had every opportunity to hear the appellant, the State, as well as the second respondent, had not even bothered to verify whether the appellant, who was facing criminal trial was impleaded as a party to the proceedings in the High Court. A perusal of the order discloses that the High Court appears to have passed

orders on the very first hearing date, unmindful of the consequences involved. The order does not reflect any of the issues dealt with by the learned Sessions Judge, while rejecting the application of the respondents in seeking to re-examine PW 9, the second respondent herein. Though orders could have been passed in this appeal by remitting the matter back to the High Court, having regard to the time factor and since the entire material for passing final orders are available on record and since all parties were before us, the correctness of the order of the Sessions Judge dated 18-11-2009, can be examined and final orders can be passed one way or the other in the present criminal appeal itself".

13. In the case of State (NCT of Delhi) v. Shiv Kumar Yadav & Anr.2,

it is observed that:

"15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the

(2016) 2 SCC 402

present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-

examination.

16. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the authorities concerned including the Law Commission and the Bar Council of India".

14. In Natasha Singh v. Central Bureau of Investigation (State)3, the

Supreme Court has held as follows:

"15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or

(2013) 5 SCC 741

to cause serious prejudiceto the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."

15. In the present case, it is not in dispute that the witness sought to

be recalled has already been examined and cross-examined at

considerable length. The application for recall has been filed at a

belated stage and no satisfactory explanation has been furnished for

the failure to put the alleged questions at the appropriate stage

during the trial. The application does not disclose any material or

circumstance which is essential for a just and proper adjudication of

the case. On the contrary, it appears to be a clear attempt to fill up

lacunae in the defence, which is impermissible in law. It is well

settled that the power of recall cannot be exercised to enable a party

to improve upon its case or to rectify omissions arising from

negligence or tactical decisions. Allowing such an application would