Rajesh Kumar JaIn Vs. State of Orissa

Rajesh Kumar Jain vs State of Orissa

Disposition Petition dismissed Court Orissa Decided Apr 09, 2008

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Citation: sooperkanoon.com/536358
Court: Orissa High Court
Judge: Pradip Mohanty, J.
Decided On: Apr 09, 2008
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed

Parties & Advocates

Appellant / Petitioner

Rajesh Kumar Jain

Advocate Mr. Panda

Respondent

State of Orissa

Legal References

Cases Referred: and State of Bihar v. Lalu Prasad Yadav
Reported In: 2008CriLJ4472

Excerpt

.....or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 7...........and also by the defence.3. mr. panda, learned counsel for the petitioner submits that the petition under section 154 of the evidence act, which was filed after cross-examination of p.w. 3, is not permissible, since the defence elicited some new facts from the mouth of the p.w. 3. he further submits that once a witness is examined in chief and cross-examined by the defence, he should not be permitted to be recalled. by permitting the prosecution to put leading question to a witness after his cross-examination was over, the very purpose of examination of the witness has been frustrated.4. mr. behera, learned additional government advocate vehemently contends that the trial court has rightly allowed the prayer of the prosecution and no illegality has been committed by it by declaring p.w. 3 hostile under section 154 of the evidence act and allowing the prosecution to put leading questions to the said witness. he also submits that no illegality has been committed by the trial court in declaring p.w. 3 hostile to the prosecution, since during his examination-in-chief though he stuck to his statement made under section 161, cr. p.c. during cross-examination he introduced a new story in order to favour the adverse party. he also submitted that the petition under section 154 of the evidence act was filed when p.w. 3 was still in the witness box. therefore, it cannot be said that the trial court went wrong in allowing such a petition.5. learned counsel for the parties relied upon the decision in tahasildar singh v. state of u.p. : 1959 crilj1231 , dayabhai chhaganbhai thakkar v. state of gujarat : 1964 crilj472 , and state of bihar v. lalu prasad yadav : 2002 crilj3236 .6. perused the petition and the decisions cited by the parties. the main point to be considered is whether the court can allow a petition under section 154 of the evidence act filed by the prosecution after cross-examination of a witness by the defence when he supported the prosecution case in his.....

Full Judgment

ORDER

Pradip Mohanty, J.

1. This criminal revision is directed against the order dated 15-3-2007 passed by the Additional Sessions Judge, Bhawanipatna in S. C. No. 73/57 of 2006 permitting the prosecution to examine P.W. 3 under Section 154 of the Evidence Act after his cross-examination by the defence counsel.

2. The petitioner is facing trial under Sections 302/304-B/498-A, IPC and Section 4 of the D. P. Act. After examination and cross-examination of P.W. 3, the P. P. filed a petition under Section 154 of the Evidence Act on 15-3-2007 with a prayer to re-examine the said witness. The trial Court after considering the said petition under Section 154 of the Evidence Act declared P.W. 3 hostile. Thereafter, he was cross-examined by the prosecution and also by the defence.

3. Mr. Panda, learned Counsel for the petitioner submits that the petition under Section 154 of the Evidence Act, which was filed after cross-examination of P.W. 3, is not permissible, since the defence elicited some new facts from the mouth of the P.W. 3. He further submits that once a witness is examined in chief and cross-examined by the defence, he should not be permitted to be recalled. By permitting the prosecution to put leading question to a witness after his cross-examination was over, the very purpose of examination of the witness has been frustrated.

4. Mr. Behera, learned Additional Government Advocate vehemently contends that the trial Court has rightly allowed the prayer of the prosecution and no illegality has been committed by it by declaring P.W. 3 hostile under Section 154 of the Evidence Act and allowing the prosecution to put leading questions to the said witness. He also submits that no illegality has been committed by the trial Court in declaring P.W. 3 hostile to the prosecution, since during his examination-in-chief though he stuck to his statement made under Section 161, Cr. P.C. during cross-examination he introduced a new story in order to favour the adverse party. He also submitted that the petition under Section 154 of the Evidence Act was filed when P.W. 3 was still in the witness box. Therefore, it cannot be said that the trial Court went wrong in allowing such a petition.

5. Learned Counsel for the parties relied upon the decision in Tahasildar Singh v. State of U.P. : 1959 CriLJ1231 , Dayabhai Chhaganbhai Thakkar v. State of Gujarat : 1964 CriLJ472 , and State of Bihar v. Lalu Prasad Yadav : 2002 CriLJ3236 .

6. Perused the petition and the decisions cited by the parties. The main point to be considered is whether the Court can allow a petition under Section 154 of the Evidence Act filed by the prosecution after cross-examination of a witness by the defence when he supported the prosecution case in his chief. In Tahasildar Singh's case (supra) the Apex Court was dealing with the construction and interpretation of Section 162, Cr. P.C. and Section 145 of the Evidence Act. After taking into consideration the ratio decided in Tahasildar Singh's case, the Apex Court has decided in Dayabhai's case (supra) that the Court can permit a person, who calls a witness, to put questions to him which might be put in cross-examination at any stage of examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief. Similar view has been taken in Lalu Prasad's case (supra).

Section 154 of the Evidence Act read as follows:

154. Question by party to his own witness :- (1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under Sub-section (1), to rely on any part of the evidence of such witness.

From a bare reading of the aforesaid provision, it is crystal clear that discretion lies with the Court to permit a person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication, confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and discretion is entirely left to the Court to exercise the power when the circumstances demand. In the instant case, P.W. 3 was examined by the prosecution who in his examination-in-chief stuck to his earlier version made before the police. However, during his cross-examination by defence, he came out with a different story favouring the accused. Therefore, while the witness was still in the witness box, the prosecution filed the petition under Section 154 of Evidence Act which was allowed by the trial Court. Thereafter, the prosecution cross-examined the witness whereafter he was also cross-examined by the defence.

7. In view of the discussions made above, this Court is satisfied that no illegality has been committed by the trial Court in allowing the petition under Section 154 of the Evidence Act.

8. There is thus no merit in this revision which is accordingly dismissed.

Same Court & Year Orissa · 2008 Same Parties Rajesh Kumar Jain vs State of Orissa Same Subject Criminal Same Judge Pradip Mohanty, J.

Criminal