S. 311 CrPC | Orissa High Court Allows Recall Of Witness 26 Yrs After He Was Cross-Examined & Discharged

The Orissa High Court has recently allowed a petition filed under Section 311 of the Code of Criminal Procedure after a delay of ‘26 years’ for recalling a witness who was cross-examined and discharged in 1997.

While stressing on the right of the accused to fair trial, the Single Judge Bench of Justice Sashikanta Mishra observed,

“This is a classic case where the question of belated justice is pitted against the right of the accused to a fair trial. Having regard to the fundamental principles enshrined in the Constitution of India, this Court would rather lean in favour of the latter than the former so that the end result i.e., of rendering of justice to the parties is actually realised.”

Factual Background

The petitioner is facing trial on the grave accusation of triple murder along with other persons. As many as twenty-one witnesses were examined from the side of the prosecution, out of whom PW-19 is the Investigating Officer. He was cross-examined and discharged way back on 15.09.1997.

The petitioner filed a petition under Section 311 of CrPC to recall PW-19 for further cross-examination. It was stated in the petition that certain questions material to the defence could not be put to him as the lawyer, who was then representing the petitioner, was ill.

However, the Court below rejected the petition on the ground that the same had been filed after expiry of more than twenty-six years at the stage of defence and that the intention of the accused was only to delay the disposal of the case.

Therefore, the petitioner challenged the same before the High Court.

Contentions of Parties

It was argued for the petitioner that a litigant cannot be allowed to suffer for the inability of his lawyer to cross-examine important witnesses at the relevant time because of his ill health.

It was submitted that the PW-19 was discharged after being cross-examined by the counsel appearing for the co-accused persons. But in so far as the present accused is concerned, the testimony of PW-19 went entirely unchallenged.

Therefore, it was contended that non-allowing the recall petition affects the defence of the petitioner in the trial and also strikes at the principles of right to fair trial. Further it was submitted that it is the settled position of law that if the cross-examination is required for a just decision of the case, mere delay in disposal of the case cannot be a ground to disallow the same.

On the other side, the State contended that filing of the recall petition by the accused-petitioner belatedly is nothing but a ‘dilly-dallying tactic’ resorted by him to somehow delay the disposal of the case. It was also pointed out that the petitioner has not come up with the list of questions proposed to be asked to the said witness.

Court’s Observations

The Court noted that the IO could not be cross-examined as the lawyer appearing for the petitioner was suffering from acute kidney failure.

In the additional petition, a reference was made to the statement of the IO regarding seizure of the weapon of offence and the statement of PW-6 on record regarding his statement made to the IO about his residence, the statement of the IO regarding involvement of other persons in the case, recording of discovery statement etc.

After going through the above averments, it was of the view that the Court below should not have been swayed away by considerations of delay only.

“It is a fundamental proposition of criminal law that graver the crime, higher is the standard of proof required to establish it. True, the accused is charged with triple murder but the same by itself does not make him a triple murderer unless he is held so after conclusion of the trial. Prosecution still has to prove its case to the hilt before the accused can be treated guilty”, the Court added.

It made extensive reference to the principles laid down by the Apex Court in Rajaram Prasad Yadav v. State of Bihar on recall of witnesses and said,

“…it is seen that during cross examination of the Investigating Officer by the co-accused persons, the present petitioner had gone unrepresented, which as stated earlier was because of a reason beyond his control. That apart, the questions proposed to be put to the witness on recall are, in the considered view of this Court, absolutely material to the defense of the accused-petitioner, as otherwise he would be definitely prejudiced.”

Therefore, the impugned order was set aside allowing the recall petition with some conditions.

Case Title: Rudra Narayan Sahu v. State of Odisha

Case No.: CRLMC No. 947 of 2023

Judgment Dated: March 15, 2023

Counsel for the Petitioner: M/s. Devashis Panda, A. Mehta, A.A. Mishra, D.K. Panda & S. Panda, Advocates

Counsel for the State: Mr. S.N. Das, Additional Standing Counsel

Citation: 2023 LiveLaw (Ori) 40