Full Judgment
L.K. Mishra, J.
1. Order dated 22.05.2009 passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 170 of 2005 by which he rejected the prayer of the petitioner (who is the accused therein) under Section 311 of the Code of Criminal Procedure, 1973 (here-in-after called 'the Code') for further cross-examination of P.W.1 and cross-examination of P.W.2, 3 and 5 is impugned in this application. The learned advocate for the petitioner declined to cross-examine PWs 2, 3 and 5. He also allegedly could not cross-examine P.W.1 effectively. Therefore, the aforementioned petition was filed on behalf of the accused-petitioner inter alia delineating the specific questions to be put to P.W.1 in further cross-examination.
2. Heard from both sides. Learned advocate for the petitioner has contended that further cross-examination of P.W.1 is necessary and P.Ws.2, 3 and 5 have not at all been cross-examined. This being a Sessions Case involving offence under Section 302 I.P.C., if the witnesses are not cross-examined then it would cause grave prejudice to the petitioner and would result in failure of justice. Learned Additional Government Advocate has submitted that the accused-petitioner should not be allowed to take advantage of his own mischief and once having declined to cross-examine the witnesses should not be allowed to do so since if such an action is allowed each and every accused can hold up the trial indefinitely.
3. Section 311 of the Code reads as follows :
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 as a witness, or examine 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 be essential to the just decision of the case.
4. The case involves offences under Sections 498-A/304-B/302/201/34 of I.P.C. and Section 4 of the Dowry Prohibition Act, 1961. If some witnesses are not at all examined it can cause grave prejudice to the defence. However, the fact remains that sometimes the defence succeeds in protracting the trial of the case by deliberately refusing to cross-examine the material witnesses and later seeking to cross-examine them under Section 311 of the Code. In the present case, no reason has been put forth in the petition as to why the witnesses (P.Ws.2, 3 and 5) were not examined at all by the defence though it has been mentioned in the petition that P.W.1 was cross-examined ineffectively since the senior conducting Counsel was not present. In view of the nature and gravity of offence, this Court feels that the evidence cross-examination of the aforesaid witnesses is essential to the just decision of the case.
5. Once the Court comes to a conclusion that the evidence of the witnesses is essential to the just decision of the case, it automatically follows that the petition under Section 311 of the Code is to be allowed. However, since no ground at all has been put forth why the witnesses were not cross-examined, this Court feels that the defence should be saddled with compensatory cost.
The petition filed by the defence to further cross-examine to P.W.1 and to cross-examine P.Ws.2, 3 and 5 is allowed who shall be summoned by the trial Court for cross-examination, however, the cross-examination of P.W.1 shall be limited to the questions mentioned in the petition. The aforementioned order is subject to payment of cost of Rs. 1,500/- (rupees one-thousand five hundred) by the defence which shall be deposited to the credit of the State under appropriate head.
The CRLMC is allowed.