Orissa High Court
Bikram Kishore Bhuyan vs State Of Odisha ..... Opposite Party on 13 September, 2023
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 2969 of 2023
1. Bikram Kishore Bhuyan
2. Sangram Kishore Bhuyan
3. Upendra Samal
4. Gopala Mohapatra
5. Niranjan Kuanar
6. Kamalkanta Kunar
7. Ashok Bhuyan @ Ashok Kumar
Bhuyan
8. Khetrabasi Bhuyan
9. Gyanendra Bhuyan
10. Abhina @ Abhaya Ku. Sahu ..... Petitioners
Mr. Aviram Patra, Advocate
Vs.
State of Odisha ..... Opposite Party
Mr. S.S. Pradhan, A.G.A.
CORAM:
JUSTICE SAVITRI RATHO
ORDER
13.09.2023 Order No. (Through hybrid mode)
03.
1. This application under section 482 of the Code of Criminal Procedure has been filed by the petitioners, challenging the order dated 17.03.2023 passed by the learned Asst. Sessions Judge, Salipur in S.T. Case No. 371 of 2006 arising out of Salipur P.S. Case No. 195 of 1999 rejecting the application of the petitioners to recall P.W.1 to P.W.7 and P.W.9 to P.W.12 for further cross- examination. The petitioners are facing trial for commission of offences punishable under Sections 302 IPC and other Sections.
2. Mr. Aviram Patra, learned counsel for the petitioners Page 1 of 5 submits that the petitioners want to confine their prayer to recall of P.W.9 Krushna Candra Sethi and P.W.11 Pramila Kumari Mohapatra only. He further submits that these witnesses had been cross-examined by accused Raghunath Bhuyan, Sangram Kishore Bhuyan, S/O: Raghunath Bhuyan and Bikram Kishore Bhuyan, S/O: Bibekananda Bhuyan. The other accused persons who are the petitioners here could not cross examine them and will be seriously prejudiced if P.Ws. 9 and 11 are not recalled for their cross-examination by the petitioners.
3. Mr. S.S. Pradhan, learned Addl. Government Advocate submits that the application has been rightly rejected as the application was filed after sixteen years without explaining the reason for the delay and the questions proposed to be asked or the points on which cross examination was necessary had not been furnished , for consideration by the learned trial court . He has further submitted that the application has been filed by the petitioners to prolong the trial as it will be difficult to secure the presence of these witnesses after so many years.
4. Perusal of the petition filed under Section 311 of Cr.P.C. reveals that the only ground taken for recall of the witnesses is that the P.Ws. are very material witnesses for which they are required to be recalled for cross-examination, otherwise the accused shall Page 2 of 5 face irreparable loss and injury and will be unable to get justice. The questions sought to be put to these witnesses have not been mentioned in the petition.
5. Perusal of the order dated 17.03.2023 reveals that the learned trial Court has observed that the petition does not reveal why the accused persons did not cross-examine the witnesses when they deposed in the case and other accused persons cross- examined them and why the application for recalling them was not filed immediately. He has further observed that P.Ws. 1, 2, 3, 4 and 6 have been declared hostile by the prosecution and the other witnesses have been cross examined by the other accused persons at length, so the petitioners will not be prejudiced if they are not allowed to cross examine them .He has further observed that it will be very difficult to procure the attendance of the witnesses at the belated stage as it was a case of the year 2006. Holding that there is no sufficient reason mentioned by the accused persons for the delay in filing the petition and the reason for non-examination of witnesses when they deposed in the Court, the petition has been rejected.
6. I find no illegality in the well reasoned impugned order and am not inclined to interfere with it.
7. At this juncture, Mr. Patra, learned counsel submits that the Page 3 of 5 examination of prosecution witnesses is going on and four to five witnesses are yet to be examined, so the petitioners may be given a chance to file a fresh application for recall of only P.Ws. 9 and 11 citing the reasons for not filing the application immediately and furnishing the reasons for filing the application after long delay along and why these witnesses are required to be cross examined and the nature of questions proposed to be asked to them.
8. Considering the fact that the accused are facing trial for the offence under Section 302 IPC and have not cross examined these two witnesses and trial is still in progress, I am of the considered view that in the interest of justice, they should be given a chance to file a fresh application under Section-311 Crl.P.C. for consideration of the learned trial Court.
9. If such application is filed containing the reason for not cross examining these witnesses earlier and filing the application after such a long delay instead of filing it promptly; and the nature of questions proposed to be asked to these witnesses, so that the learned trial court can consider if their cross examination is essential, the application shall be considered by the learned trial Court in accordance with law expeditiously, so that trial is not unnecessarily delayed. If the learned trial Court finds that their examination is essential for a just decision in the case and allows Page 4 of 5 the application to recall the witnesses, the petitioners are given the liberty to furnish the present correct address of the P.W.9 and P.W.11 to avoid delay in securing their presence. If notice/ summon cannot be served on the two witnesses on the ground of incorrect address, the trial will proceed without waiting for their appearance.
10. The petition under Section - 311 Cr.P.C. if any, shall be filed by 25.09.2023 without fail.
11. The CRLMC is disposed of with the aforesaid observations.
12. Urgent certified copy of this order be granted on proper application.
13. Copy of this order be communicated to the learned Asst. Sessions Judge, Salipur forthwith by the Registry.
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(SAVITRI RATHO) JUDGE Sukanta Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Sep-2023 19:16:11 Page 5 of 5