Jagannath Naik vs State Of Odisha .... Opposite Party(S)
2026 Latest Caselaw 2344 Ori

Orissa High Court

Jagannath Naik vs State Of Odisha .... Opposite Party(S) on 13 March, 2026

Author: Sanjeeb K Panigrahi

Bench: Sanjeeb K Panigrahi

                                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                      CRLMC No.770 of 2026

                                     Jagannath Naik                   ....            Petitioner(s)

                                                                        Mr. Devashis Panda, Adv.

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

                                                                             Mr. Tej Kumar, ASC

                                            CORAM:
                                            HON'BLE DR.JUSTICE SANJEEB K PANIGRAHI

                                                                 ORDER

Order No. 13.03.2026

1. This matter is taken up through hybrid arrangement.

2. The present petition under Section 482 of the Code of

Criminal Procedure has been instituted by the Petitioner

seeking to invoke the inherent jurisdiction of this Court for

quashing the order dated 17.02.2026 passed by the learned

Ad-hoc Additional Sessions Judge (F.T.S.C.), Dhenkanal in

C.T. (Spl.) (P) Case No.52 of 2024, whereby the petition filed

by the present Petitioner under Section 311 of the Cr.P.C.

for recalling P.W.13, the Doctor who had examined the

victim, for the purpose of further cross-examination, has

been rejected.

3. The grievance of the Petitioner, in essence, is that the

learned trial Court has failed to appreciate the true scope ORISSA, CUTTACK Date: 17-Mar-2026 18:14:27

and object of Section 311 of the Cr.P.C., which vests the

Court with wide discretionary powers to summon or recall

any witness at any stage of the trial if such evidence

appears to be essential for arriving at a just decision of the

case. It is contended that the testimony of P.W.13 being of a

medical expert constitutes a crucial piece of evidence in the

adjudication of the allegations involved in the case, and

therefore denial of an opportunity to further cross-examine

the said witness would cause serious prejudice to the

defense of the Petitioner and impair the fairness of the trial.

4. The Petitioner, therefore, contends that the impugned

order rejecting the prayer under Section 311 of the Cr.P.C.

suffers from non-application of judicial mind and is liable

to be interfered with in exercise of the inherent jurisdiction

of this Court in order to secure the ends of justice and to

prevent abuse of the process of the Court.

5. Learned counsel for the Petitioner submits that the

Petitioner is facing trial for the alleged offences under the

Protection of Children from Sexual Offences Act, 2012 and

the determination of the age of the victim assumes pivotal

significance for the adjudication of the case. It is contended

that although the victim has already been examined and

P.W.11, the grand-mother of the victim, has deposed with

regard to the age of the victim, the testimony of P.W.13, the

Doctor who had medically examined the victim, assumes

critical evidentiary importance in determining whether the

victim was in fact a minor at the relevant time.

6. Learned counsel further submits that the defense was

deprived of an effective opportunity to cross-examine

P.W.13 on the crucial aspect of age determination.

According to him, the Doctor appears to have indicated the

age of the victim with certainty despite the admitted

position that no scientific examination such as radiological

or ossification test had been conducted and no

documentary proof of age was shown to the witness at the

time of examination. In such circumstances, the further

cross-examination of P.W.13 becomes indispensable for

testing the veracity, basis and reliability of the medical

opinion regarding the age of the victim.

7. It is therefore contended that the rejection of the

Petitioner's application filed under Section 348 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 seeking recall of

P.W.13 has caused serious prejudice to the defence. Learned

counsel submits that the defence plea that the victim was a

major can only be effectively established if the Doctor is

confronted during cross-examination on the methodology

adopted for age assessment and the absence of any

scientific test or documentary basis for such determination.

According to the Petitioner, the denial of such an

opportunity has resulted in grave prejudice to the accused

and the impugned order reflects a failure to appreciate that

the recall of the witness was necessary for arriving at a just

and fair decision of the case.Learned counsel for the

Petitioner further contends that the impugned order suffers

from the vice of gross non application of judicial mind to

the materials on record and warrants interference u/s. 528

B.N.S.S., 2023.

8. Learned counsel for the Petitioner further contends that

the sole reason assigned by the learned trial Court while

declining the prayer for recalling and further cross-

examining the medical officer is neither legally sustainable

nor supported by any cogent reasoning. According to him,

the learned Court below has failed to appreciate that the

prosecution evidence had not yet been closed and the trial

was still in progress with the examination of other charge-

sheeted witnesses continuing. In such circumstances, the

rejection of the application for recall of a material witness at

that stage of the trial is wholly unwarranted and contrary to

the settled principles governing criminal procedure,

particularly when no irreparable prejudice would have

caused to the prosecution by permitting such recall.

9. Learned counsel for the Petitioner further submits that

the law relating to the exercise of powers under Section 348

of the Bharatiya Nagarik Suraksha Sanhita, 2023 is well

settled. The provision confers wide discretionary powers

upon the trial Court to summon, recall or re-examine any

witness at any stage of an inquiry, trial or other proceeding

if the evidence of such witness appears to be essential for

arriving at a just decision of the case.

10. It is further contended that in the present case the

further cross-examination of P.W.13, the Doctor who

examined the victim, is indispensable for testing the

correctness and reliability of the medical opinion regarding

the age of the victim. Since the determination of the victim's

age is a crucial factor in a prosecution under the Protection

of Children from Sexual Offences Act, 2012, denial of an

opportunity to effectively cross-examine the medical

witness results in serious prejudice to the defence. Learned

counsel therefore submits that the learned trial Court has

acted illegally and arbitrarily in rejecting the prayer for

recall of the said witness, particularly when the Petitioner is

facing charges carrying severe penal consequences

including imprisonment for life.

11. Learned counsel for the Petitioner further contends that

the mere fact that certain earlier applications had been filed

by the Petitioner seeking recall of the victim and that such

applications were rejected cannot, by itself, constitute a

valid ground for rejecting the present application filed

under Section 348 of the said Sanhita. It is submitted that

the principle of res judicata has no application in criminal

trials, especially in matters concerning procedural

opportunities necessary for ensuring a fair trial. Criminal

jurisprudence mandates that an accused must be afforded

adequate opportunity to establish his defence, more so

when he is facing serious criminal charges. According to

the Petitioner, the impugned order proceeds on an

erroneous premise and denies him a legitimate opportunity

to effectively defend himself, thereby resulting in manifest

prejudice and failure of justice.

12. Per contra, learned counsel appearing for the State

vehemently opposes the submissions advanced on behalf of

the Petitioner and contends that the contentions raised in

the present petition are wholly misconceived. It is

submitted that in the F.I.R. itself the victim has clearly

disclosed her age and the same finds due corroboration

from the school admission register seized during the course

of investigation. According to the State, the said document

constitutes a reliable piece of evidence with regard to the

determination of the victim's age and there exists no

ambiguity or discrepancy warranting any interference by

this Court at this stage. Learned counsel further submits

that the present petition has been filed by the Petitioner

with the sole intent to protract the proceedings and delay

the trial, despite the materials collected during

investigation clearly disclosing the commission of the

alleged offences. It is therefore contended that the petition,

being devoid of any merit and not disclosing any ground

for exercise of the extraordinary jurisdiction of this Court,

deserves to be dismissed in limine.

13. The scope and ambit of the power to recall or re-

examine a witness has been authoritatively explained by

the Supreme Court in Mohanlal Shamji Soni v. Union of

India1, wherein it was held that the object of the provision

is to enable the Court to arrive at the truth and render a just

decision and that the Court may exercise such power at any

stage if the evidence of a witness appears essential to the

just decision of the case. The Court further held that the

provision confers very wide and plenary powers upon the

Court, which are to be exercised with great caution and

circumspection. Nevertheless, such powers are intended to

be invoked whenever the ends of justice so demand or

where intervention becomes necessary to prevent abuse of

the process of the Court.

14. The inherent jurisdiction is thus designed to ensure that

the administration of justice is not thwarted by

technicalities and that the judicial process is not permitted

to be misused for ulterior purposes. In the context of

determination of age in cases involving allegations under

the POCSO Act, the Supreme Court in Jarnail Singh v.

AIR 1991 SC 1346

State of Haryana2 held that age determination must

ordinarily be based on reliable documentary evidence such

as school records or birth certificates and in their absence

medical opinion may be considered. Therefore, where the

determination of age has been made without scientific tests

or supporting documentary proof, effective cross-

examination of the medical officer assumes considerable

significance for a just adjudication of the case.

15. In view of the aforesaid settled legal position, the

opportunity to cross-examine P.W.13 assumes considerable

significance in the present case, particularly when the

determination of the victim's age constitutes a

determinative fact for the applicability of the provisions of

the POCSO Act. The right of the accused to effectively

cross-examine a material witness is an integral facet of a fair

trial and forms part of the principles of natural justice. Any

curtailment of such right, especially in respect of a witness

whose testimony bears directly upon a crucial issue such as

the age of the victim, would seriously prejudice the

defence. Denial of such opportunity would not only impair

the ability of the accused to challenge the prosecution's case

but may also occasion a failure of justice.

16. After hearing learned counsel for the respective parties

and upon perusal of the impugned order, this Court is of

AIR 2013 Supreme Court

the considered view that the ends of justice would be

served by granting limited liberty to the Petitioner.

Accordingly, the CRLMC is disposed of granting liberty to

the Petitioner to file a separate application before the

learned trial Court seeking recall of P.W.13, the Doctor,

specifically indicating therein the questions proposed to be

put to the said witness.

17. In the event such an application is filed, the learned Ad-

hoc Additional Sessions Judge (FTSC), Dhenkanal shall

consider the same in accordance with law and may allow

the application subject to the condition that the cross-

examination shall remain strictly confined to the

questionnaire set out in the said application and shall not

travel beyond the scope thereof.

18. The Petitioner is granted liberty to file such an

application within fifteen (15) days from today. Upon such

application being filed, the learned Ad-hoc Additional

Sessions Judge (FTSC), Dhenkanal shall consider the same

expeditiously and ensure that the cross-examination of

P.W.13 is conducted at the earliest possible opportunity.

19. Issue urgent certified copy of this order as per Rules.

(Dr. Sanjeeb K Panigrahi) Judge

Sipun