Jagadish Kumar Muni vs State Of Odisha .... Opposite Party (S)
2026 Latest Caselaw 621 Ori

Orissa High Court

Jagadish Kumar Muni vs State Of Odisha .... Opposite Party (S) on 22 January, 2026

Author: Sanjeeb K Panigrahi

Bench: Sanjeeb K Panigrahi

                                                              Signature Not Verified
                                                              Digitally Signed
                                                              Signed by: BHABAGRAHI JHANKAR
                                                              Reason: Authentication
                                                              Location: ORISSA HIGH COURT, CUTTACK
                                                              Date: 22-Jan-2026 18:46:35




              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLMC No. 5498 of 2025

       (In the matter of an application under Section 482 of Criminal
       Procedure Code, 1973).

       Jagadish Kumar Muni                        ....                          Petitioner(s)
                                       -versus-

       State of Odisha                            ....          Opposite Party (s)


     Advocates appeared in the case through Hybrid Mode:

       For Petitioner(s)           :                     Mr. Devashis Panda, Adv.


       For Opposite Party (s)      :                   Mr. Udit Ranjan Jena, AGA
                                                                                .


                 CORAM:
                 DR. JUSTICE SANJEEB K PANIGRAHI

                      DATE OF HEARING:-19.01.2026
                     DATE OF JUDGMENT:-22.01.2026
     Dr. Sanjeeb K Panigrahi, J.

1. The Petitioner has instituted the present Criminal Miscellaneous Case

under Section 482 of the Code of Criminal Procedure , 1973/ Section

528 of Bharatiya Nagarik Suraksha Sanhita, 2023, invoking inherent

jurisdiction of this Court, seeking recall of PW-29 and PW-41 for the

limited purpose of further examination, so as to clarify and complete

their testimonies on certain material and relevant issues arising

during the course of trail.

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                                                             Location: ORISSA HIGH COURT, CUTTACK





I.    FACTUAL MATRIX OF THE CASE:

 2.   The brief facts of the case are as follows:

      (i)     The Petitioner is the son of the deceased, Late Lambodhar Muni,

and is also the victim within the meaning of the criminal

jurisprudence. The present petition is being filed by the

Petitioner invoking the inherent jurisdiction of this Court under

Section 528 of BNSS, 2023.

(ii) The deceased, was the proprietor of a distributor firm of

Heritage Milk & Milk Products, and owing to the nature of his

business, he used to reside for most of the time at his office-cum-

residence, where he ordinarily spent the greater part of his day.

(iii) On the intervening night of 13/14.06.2020, the deceased, was

brutally murdered during the commission of a dacoity at his

office-cum-residence at Berhampur, as is borne out from the

expert evidence available on record.

(iv) Upon entry into the office-cum-residence, it was found that the

back gate was open and the lock thereof was broken. The

deceased was found lying on the floor of a room near the bed on

the ground floor of the premises. Further, suspected bloodstains

were noticed inside the said room, and one screwdriver, two

mobile phones, and one small pink colored towel having

suspected bloodstains were recovered from the place of

occurrence.

(v) Thereupon, the steel Godrej almira was found lying open and its

contents were found scattered. On verification, it was revealed

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that valuable articles belonging to the family, including office

cash and gold ornaments, were missing. The said office cash had

not been deposited in the ICICI Bank, Berhampur, due to the

COVID-19 outbreak, during which period regular daily

transaction could not be carried.

(vi) That the manner in which the investigation was conducted by

the Gosaninuagaon Police after registration of the FIR gave rise

to serious suspicion and grave doubt regarding the fairness,

imparity and authenticity of the investigation. Being dissatisfied

with the said investigation, the petitioner approached this

Court, seeking appropriate relief. Although this Court were not

inclined to transfer the investigation to the CBI, it was pleased to

direct the State Investigating Agency to undertake further

investigation in the matter.

(vii) Thereafter, during the course of trial, PW-41, deposed with

regard to the collection of biological and other physical

evidences from the scene of crime; however, he inadvertently

omitted to state in his deposition about the crucial fact that,

during the scientific examination of the scene of crime, chance

fingerprints were detected.

(viii) Upon such omission assumes critical significance inasmuch as

the contemporaneous documentary record clearly establishes

that two partial latent chance fingerprints marked as 'A' and

'A1' were detected on the outer surface of the safe-lock door of

the steel almirah.

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(ix) Pursuant thereto, the State Print Bureau, Bhubaneswar, after

conducting a scientific examination, rendered an opinion that

the chance fingerprints marked as 'A' and 'A1' were identical

with the right middle finger and right ring finger impressions of

the accused. During the course of trial, the fingerprint expert

was examined as PW-33 and the Finger Print Examination

Report was duly exhibited. However, owing to an inadvertent

omission in the deposition, the said evidence has remained

incomplete on record.

(x) Thereupon, during the final arguments, the defence specifically

raised an objection regarding the absence of oral evidence

pertaining to lifting and seizure of chance of fingerprint. The

Learned Addl. District & Session Judge accordingly posed a

query in that regard. However, instead of seeking a recall of the

relevant witness to clarify the omission, the prosecution elected

to advance its submission by placing reliance solely upon the

documentary evidence on record.

(xi) Upon appreciating the gravity of the situation and with a view

to preventing a miscarriage of justice, the petitioner filed an

application under Section 348 of BNSS/Section 311 of CrPC

seeking recall of the concerned witness for completion of

testimony. However, the learned Trial Court rejected the said

application on ground that such a prayer was required to be

routed through the learned Public Prosecutor.

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(xii) On 15.12.2015, when the matter was listed for further

arguments, an associate of the petitioner's counsel was

physically present before the learned Trial Court at Berhampur.

However, the arguing counsel for the petitioner was unable to

participate through virtual mode due to non-provision of access

in relation to the issue of recall of the petition, as a result of

which the said petition could not be formally presented before

the learned Trial Court.

(xiii) The present case arises out of a Sessions Trial concerning the

death of the Petitioner's father, wherein the trial has been

concluded in all respects and the matter presently stands at the

stage where judgment has been reserved by the learned Lower

Court.

(xiv) In the aforesaid circumstances, the petitioner is constrained to

invoke the inherent jurisdiction of this Court under Section 528

of BNSS/Section 482 of CrPC, inasmuch as the learned Trial

Court has already reserved the judgment and the prosecution

has concluded its case, thereby leaving the petitioner with no

other efficacious alternative remedy.

Being aggrieved by the aforesaid facts and circumstances, the

Petitioner has been constrained to approach this Court by way of the

present CRLMC.

II. COURT'S REASONING AND ANALYSIS:

3. Heard Learned Counsel for parties and perused the documents placed

before this Court.

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4. In light of the forgoing facts, the Court is of the considered view that

the principal issue that arises for determination is whether recall and

examination of the witness and adducing further evidence, as sought

by the Petitioner, are just, necessary, and essential for the proper

adjudication of the case.

5. Section 311 of the CrPC/ Section 348 of BNSS confers wide

discretionary power upon the Court. The said provision empowers

that "any Court may, at any stage of any inquiry, trial or other proceeding

under this Code, summon any person in attendance, though not summoned

as a witness, or recall an re-examine any person already examined; and the

Court shall summon and examine or re-call and re-examine any such person

if his evidence appears to it to be essential to the just decision of the case".

6. The power conferred under Section 311 of the Code is undoubtedly

wide; however, such power is required to be exercise sparingly and in

judicious manner, and not arbitrarily. The invocation of the said

provision must be directed towards the discovery of relevant facts and

the proper proof thereof, so as to ensure the ends of justice, while at

the same time not causing prejudice to either of the parties.

7. Emphasizing that purpose of Section 311 of the Cr.P.C. is to unearth

the truth and secure a just verdict by considering all relevant facts

observed that: "The very usage of the expressions in the Section i.e.

"any court" and "at any stage" clearly spells out that the section is

expressed in the widest possible terms and do not circumscribe or

limit the discretion of the court in any way".

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8. The power under Section 311 of the CrPC cannot be exercised at such

a belated stage where the matter is reserved for the Judgment by the

Learned Sessions Court, Berhampur.

9. If such arguments are allowed, the trial would be a never-ending

endeavor. The paramount requirement for consideration to exercise

jurisdiction under Section 311 Cr.PC is whether calling of a witness is

necessary for the just decision of the case. But when the Judgment is in

the reserved stage the conclusion cannot be drawn through the

presumption that evidences were not taken into record.

10. There can be no doubt that at the stage of trial, the trying court is the

best suited to judge the factual aspect of a criminal trial and

importance of each and every witness examined or to be examined

during the course of trial. Until and unless the Trial Court commits a

manifest error of fact or law, the decision taken by it in an application

under Section 311 Cr.PC should not be interfered.

11. Similar interpretation was reiterated by the Supreme Court in the

Vijay Kumar v. State of U.P.,1, wherein it has been held that:

"14. There is no manner of doubt that the power under Section 311 of the Code of Criminal Procedure is a vast one. This power can be exercised at any stage of the trail. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasised that power under Section 311 should be exercised for the just decision of the case. The wide discretion conferred on the court to summon a witness must

2011 (8) SCC 136

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be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each cases. As provided in the section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for the just decision of the case."

Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provision of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously."

12. Similarly the Supreme Court in the Varsh Garg v. The State of

Madhya,2, wherein it has been held that:

"29. The first part of the statutory provision which uses the expression "may" postulates that the power can be exercised at any stage of any inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression "shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential the just decision of the case". Essentially of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory."

AIR 2022 SC 3707

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13. It is further clarified that the statutory provision underscores that the

Court is not a passive or helpless bystander in the derailment of

justice. On the contrary, the Court plays a vital and proactive role as

an instrument in the realization of justice. However, such power to be

exercised with great caution and circumspection, keeping in mind the

need to balance the interests of justice with the avoidance of prejudice

or undue delay.

14. In the present case, the Petitioner was afforded ample opportunities to

exercise the rights available to him in the course of the proceedings:

Firstly, the petitioner filed an application under Section 348 of

BNSS/Section 311 CrPC seeking recall of the witness for completion of

testimony. The same was, however, not entertained by the learned

Trial Court on the ground that the application was not filed in the

prescribed manner, namely, that it ought to have been routed through

the learned Public Prosecutor, which requirement was not complied

with by the Petitioner.

Secondly, the matter was listed on 15.12.2025 for the arguments, and

the associate of the arguing counsel for the petitioner was physically

present before the Trial Court. However, the arguing counsel was

unable to join through virtual mode. In any event, if the petition for

recall of the witness was truly essential for the ends of justice, the

same could have been presented by the associate, who was in

attendance in court.

15. It is also noted that the advocate engaged on behalf of the Petitioner

has been representing the case from the stage of inspection of the

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record until its conclusion, which clearly indicates that he was aware

of all material particulars, including the subject matter in dispute. It is

a well-settled presumption that a counsel conducting a case is

competent, particularly where the counsel has been appointed by the

choice of a litigant.

16. In the present case, the Petitioner approached this Court invoking its

inherent jurisdiction at a stage when the matter has been reserved for

judgment by the Trial Court. This implies that the entire trial

proceedings, including the recoding of evidence, have been completed

and the manner has been considered and concluded by the Trial

Court, which has thereafter reserved its judgment. Permitting the

Petitioner to seek recall of witnesses at this belated stage would cause

undue delay in the administration of justice, notwithstanding the fact

that the Petitioner had been ample opportunities to exercise his rights

during the course of trial.

17. The provisions of Section 348 of BNSS/Section 311 of Cr.P.C. cannot be

permitted to be misused by litigants with a view to derailing the

proceedings or causing undue inconvenience to the opposite party, as

such conduct would amount to a miscarriage of justice. A recall

application which is not made at the appropriate stage and is sought

at a belated juncture would, if entertained, lead to an interminable

process, particularly where ample opportunity for examination of the

witness had already been afforded over a prolonged period. Such a

course would render the proceedings interminable and would be

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wholly vexatious and unproductive, thereby defeating the very object

of expeditious administration of justice.

III. CONCLUSION:

18. In view of the foregoing analysis, and upon an anxious and careful

consideration of the material facts and circumstances of the case, this

Court is of the considered opinion that the Petitioner is not entitled to

recall the witness or adduce further evidence in the present

proceedings. It is reiterated has already closed its case and the matter

has been reserved for judgment, and such a stage does not permit

invocation of inherent jurisdiction to override the statutory and

constitutional scheme of criminal jurisdiction. Consequently, this

Court finds no merit in the present CRLMC and is not inclined to

accede to the relief prayed for.

19. Accordingly, the CRLMC stands dismissed.

20. Interim order, if any, passed earlier stands vacated.

(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated 15th January, 2026/

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