Chhabindranath Behera vs State Of Odisha (Vigilance) ........ ...
2026 Latest Caselaw 2456 Ori

Orissa High Court

Chhabindranath Behera vs State Of Odisha (Vigilance) ........ ... on 16 March, 2026

Author: Sanjeeb K Panigrahi

Bench: Sanjeeb K Panigrahi

                                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                               CRLMC No. 795 of 2026

                                Chhabindranath Behera                      ........    Petitioner(s)
                                                                         Mr. Nihar Ranjan Ojha, Adv.
                                                       -Versus-

                                State of Odisha (Vigilance)                ........ Opposite Party
                                                                                 Mr. N. Moharana, SC
                                                                            (for Vigilance Department)
                                            CORAM:
                                            DR. JUSTICE SANJEEB K PANIGRAHI

                                                       ORDER

16.03.2026 Order No.

01.

1. This matter is taken up through hybrid arrangement.

2. Heard learned counsel for the parties.

3. The petitioner, in the present petition, challenges the impugned

order dated 07.02.2026 passed by the learned Special Judge,

Vigilance, Bhubaneswar in T.R. Case No. 02 of 2012 arising out of

Bhubaneswar Vigilance P.S. Case No. 33 of 2011, whereby the

petition filed under Section 311 of the Code of Criminal

Procedure for recall of P.W.-4 (the informant) and P.W.-6 (Saroj

Kumar Samal) was rejected.

4. The brief facts of the case are that, on the written report of one

Niranjan Bihari, Bhubaneswar Vigilance P.S. Case No. 33 of 2011

was registered, alleging therein that, while he was working as

Tech-III in Mancheswar Railway, he purchased LIG House No.

LP-813 at Bhubaneswar, Prashanti Vihar, KIIT Campus, Patia,

Chandrashekharpur from Smt. Bilasini Dash, 2RA-44, Unit-II,

Ashok Nagar, Bhubaneswar, in the name of his son, Sri Subrat

Kumar Bihari, on 15.02.2011. The said house was originally

allotted in the name of Smt. Bilasini Dash by the Orissa State

Housing Board. He applied for transfer of the said house along

with all necessary documents on 18.03.2011. It is further alleged

that, in order to process his application for transfer, he met the

petitioner, who was dealing with the OSHB. However, the

petitioner did not heed his request, and on 11.05.2011, when he

again met him and requested him to process his application for

transfer of ownership in the name of his son, the petitioner

demanded Rs. 3,000/- from him. Thereafter, upon bargaining, the

accused agreed to process the file upon payment of Rs. 1,500/-.

5. Being aggrieved, he informed the Vigilance officials, and

thereafter, the written FIR was filed.

6. After completion of investigation, charge sheet was submitted on

05.12.2011. Thereafter, the trial commenced, and during the

course of trial, P.W.-4 (the informant) was examined, cross-

examined, and discharged on 14.09.2022, and P.W.-6 was

examined, cross-examined, and discharged on 30.01.2023.

7. Certain questions, which, according to the defence, have a

bearing on the case, could not be put to the witnesses during

their cross-examination. An application under Section 311 of

Cr.P.C., along with a questionnaire, was filed for recall of P.W.-4

and P.W.-6 on 05.10.2024.

8. A copy of the application was served on the prosecution prior to

its filing, i.e., on 05.10.2024. The prosecution filed its reply on

12.01.2026.

9. The said application was taken up for hearing and, by order

dated 07.02.2026, was rejected on the ground that the proposed

questionnaire and suggestions were not essential for the purpose

of Section 311 of Cr.P.C., as most of the questions had already

been put to the witnesses and answers had been elicited.

10. Being aggrieved by the order dated 07.02.2026 passed by the

learned Court of Special Judge (Vigilance), Bhubaneswar in T.R.

Case No. 02 of 2012, the present application has been filed.

11. Learned counsel for the petitioner submits that Section 311

Cr.P.C. empowers the Court, at any stage of inquiry or trial, to

recall and re-examine any witness if such evidence appears

essential to the just decision of the case, the paramount

consideration being the necessity of such recall for a just

adjudication.

12. It is further submitted that the learned trial court failed to

consider whether the proposed questions were necessary for the

just decision of the case and instead rejected the petition on the

observation that most of the questions had already been put.

13. Learned counsel for the petitioner contends that the impugned

order is mechanical and has been passed without proper

application of mind.

14. The opposite party vehemently objected on the ground that both

P.W.-4 and P.W.-6 had already been examined and extensively

cross-examined by the learned defence counsel, and that the

questions sought to be put had already been put to the witnesses

and duly answered. It was submitted that the present petition

had been filed only to prolong the proceeding, and prayer was

made for its rejection.

15. By the impugned order dated 07.02.2026, the learned Special

Judge, Vigilance, Bhubaneswar rejected the petition filed under

Section 311 of Cr.P.C. seeking recall of P.W.-4 and P.W.-6 for

further cross-examination.

16. The learned trial court, upon consideration of the record,

observed that both the witnesses had already been examined and

cross-examined, and that the proposed questions had

substantially been put to the witnesses and answered. It further

took note of the stage of the trial and the requirement of

expeditious disposal under Section 4(4) of the Prevention of

Corruption Act, and held that the proposed recall was not

essential for the just decision of the case.

17. At the outset, it is apposite to examine the scope of Section 311 of

Cr.P.C.:

"311. Power to summon material witness, or examine person present-

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 and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

18. In Rajaram Prasad Yadav v. State of Bihar1, the Supreme Court,

while interpreting Section 311 of the Cr.P.C., delineated the

principles governing exercise of such power as follows:

"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

Signature 1 Not Verified (2013) 14 SCC 461.

Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: OHC Date: 18-Mar-2026 18:28:22

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.

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

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."

19. In Zahira Habibullah Sheikh (5) v. State of Gujarat2, the

Supreme Court observed as replicated hereinunder:

"27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

20. In the same vein, State (NCT of Delhi) v. Shiv Kumar Yadav3, the

Supreme Court held that mere observation that recall was

necessary for ensuring a fair trial is not enough unless there are

tangible reasons to show how the fair trial suffered without such

(2006) 3 SCC 374.

Signature 3 Not Verified Digitally Signed (2016) 2 SCC 402.

Signed by: LITARAM MURMU Reason: Authentication Location: OHC Date: 18-Mar-2026 18:28:22

recall. It was further held that recall is not a matter of course and

the discretion vested in the Court has to be exercised judiciously

to prevent failure of justice and not arbitrarily.

21. In Harendra Rai v. State of Bihar4, the Supreme Court observed

that the logic behind Section 311 Cr.P.C. is that the endeavour of

the courts is to find out the truth which would be essential for the

just decision of the case.

22. In light of the aforesaid settled position of law, this Court has

examined the impugned order. A bare perusal of the same

reveals that the learned Special Judge, Vigilance, Bhubaneswar

has rejected the application primarily on the ground that the

witnesses had already been examined and cross-examined and

that the proposed questions were not essential. However, the

order does not disclose any consideration as to whether the

omission to put such questions has caused prejudice to the

defence or whether permitting recall would subserve the cause of

justice. The rejection appears to be based on a general

observation that most questions had already been put, without a

specific evaluation of the proposed questions.

23. While it is true that recall of witnesses is not to be permitted as a

matter of course and that delay in trial and hardship to witnesses

are relevant considerations, the paramount consideration under

Signature 4 Not Verified (2023) 13 SCC 563 Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: OHC Date: 18-Mar-2026 18:28:22

Section 311 Cr.P.C. remains whether such recall is essential for a

just decision of the case.

24. Accordingly, the impugned order dated 07.02.2026 passed by the

learned Special Judge, Vigilance, Bhubaneswar in T.R. Case No.

02 of 2012 is hereby set aside. The application filed under Section

311 Cr.P.C. is restored for fresh consideration by the learned trial

court in accordance with law.

25. It is made clear that this Court has not expressed any opinion on

the merits of the application. The learned trial court shall

consider the same independently, keeping in view the principles

governing Section 311 Cr.P.C., and dispose of the application

expeditiously. If recall is permitted, the learned trial court shall

ensure that the cross-examination is conducted without

unnecessary adjournments.

(Dr. Sanjeeb K Panigrahi) Judge

Murmu