Full Judgment
R.N. Biswal, J.
1. This CRLMC arises out of a petition filed under Section 482, Cr.P.C. challenging the order dated 10.6.2005 passed by the S.D.J.M., Sonepur in G.R.Case No. 71 of 1997 wherein he rejected the petition filed under Section 311 Cr.P.C. by the petitioner and declined to recall P.Ws. 6 and 11 for cross-examination.
2. Succinctly stated the fact of the case leading to filing of this CRLMC is that the petitioner faced trial for the offence under Sections 304-A/201 IPC read with Section 39 of the Electricity Act in the aforesaid case on the allegation that one Udayanath Patra expired, coming in contact with a live electric wire stealthily taken by the petitioner underneath the cultivable land of the deceased to his house. At the stage of recording of accused statement, the petitioner filed a petition under Section 311 Cr.P.C. on 10.6.2005 with a prayer to recall P.Ws. 6 and 11 for their cross-examination on the ground that since P.W.6 was examined in absence of the counsel engaged on behalf of the petitioner he could not be cross-examined and that P.W. 11 was an accused in U.C. Case No. 56 of 1997 which was not within the knowledge of the petitioner earlier and that he is required to be cross-examined further with reference to that case for just decision of the present case. Learned S.D.J.M., rejected the petition holding that P.W.6 is not a material witness and the petition was filed five years after his examination and cross-examination was over and that P.W. 11 was examined and cross-examined on 26.8.2004 and since the judgment in U.C.Case No. 56 of 1997 was delivered in the year 2002, the petitioner could have obtained the certified copy thereof earlier and cross-examined P.W. 11 with reference to it on 26.8.2004 itself. Being aggrieved with the said order, the petitioner has preferred the present CRLMC as mentioned earlier.
4. Learned counsel appearing for the petitioner submitted that in fact P.W.6 was not cross-examined at all, but without application of mind the trial Court held that he was cross-examined five years before the petition under Section 311 of Cr.P.C. was filed. Since P.W.6 was examined on 26.11.2001 and the petition under Section 311 of Cr.P.C. was, filed on 10.6.2005 there was delay of about three years and six months, and as such the finding of the Court below that the petition was filed five years after the examination of P.W.6 was over is erroneous. Similarly with regard to recalling of P.W. 11, learned counsel for the petitioner submitted that it was mentioned in the petition under Section 311 Cr.P.C. that the petitioner was not aware of U.C.Case No. 56 of 1997 by the time P.W. 11 was examined. After his cross-examination was over, when he knew about it he applied for the certified copy of the judgment and the statement under Section 313 of Cr.P.C. and filed the petition along the same. Learned counsel for the petitioner further submitted that a petition filed under Section 311 Cr.P.C. to recall a witness for re-examination or further cross-examination cannot be rejected on the sole ground of delay. If it is felt that his further examination is required for just decision of the ease, he can be recalled and re-examined at any stage. In support of his submission he relied upon the decision of this Court in Rathia Behera v. State of Orissa; 93 (2002) CUT 184. On the other hand learned Addl. Standing Counsel supported the order passed by the trial Court.
5. One of the grounds for rejecting the prayer to recall P.W.6 by the trial Court is that P.W.6 is not a material witness; but from the true copy of his deposition filed by the petitioner before this Court it is found that he has deposed in his examination-in-chief that the accused-petitioner had taken electricity connection to his house underneath the land of the deceased. So it cannot be said that he is not a material witness. Moreover, it shows that P.W.6 was not cross-examined by the defence whereas the trial Court erroneously held the contrary. Examination-in-chief of P.W.6 was over on 26.11.2001. The petition under Section 311 Cr.P.C. having been filed on 10.6.2005 there was delay of about three years and six months in filing it, but the trial Court held that it was filed five years after, which is palpably wrong. Moreover, as per the decision cited above, a petition under Section 313 Cr.P.C. cannot be rejected on the sole ground of delay. As stated earlier P.W.6 is a material witness. He was not cross-examined because of absence of defence counsel. So the Court below ought to have recalled him for the interest of justice. Similarly when the petitioner sought for recalling P.W. 11 for further cross-examination on the new materials available by him the S.D.J.M. ought to have allowed it particularly when he did not hold his further cross-examination to be unnecessary for just decision of the case. His finding that the evidence, which the petitioner wants to elicit from P.W. 11, can be brought to record by filing certified copy of the judgment and by examining defence witness is not proper. It appears that further cross-examination of P.W. 11 is essential for just decision of the case.
Accordingly the CRLMC is allowed and the impugned order dated 10.6.2005 is set aside. The trial Court is directed to recall P.Ws. 6 and 11 to be cross-examined on behalf of the petitioner. Since it is a case of the year 1997, the S.D.J.M., shall dispose of the same expeditiously.