JUDGMENT
M. Papanna, J.
1. The order dated 11.9.2001 passed by the learned Additional Sessions Judge, Bhadrak in S.T. Case No. 54/244 of 1996 is under challenge in this revision.
2. Facts of the case relevant only for determining the question in controversy are that on the petition under Section 311, Cr.P.C. filed by the petitioners, who are facing trial in Sessions Trial Case No. 54/244 of 1996 before the learned Additional Sessions Judge,
Bhadrak for having been charged under Sections 147, 148, 323, 294, 302/143 of the Indian Penal Code, the I.O., N.C. Naik (P.W. 12) was recalled for further cross-examination on 1.6.2001 with a direction to the defence to deposit a sum of Rs. 500/- towards the expense of the witness. However, the sum of Rs. 500/- was not deposited by the defence towards expenses of P.W. 12 but on the date fixed as no witness was present, W.T. message was sent to P.W. 12 fixing 12.6.2001 for this cross-examination. Even on that day when P.W. 12 did not turn up as revealed from the order sheet, W.T. message was again sent to him fixing 25.6.2001 for hearing. On the date fixed, the I.O., N. C. Naik sent W.T. message praying for time. Hence, he was intimated by W.T. message about posting of the case to 24.7.2001 for his evidence. Thereafter, the learned trial Judge went on adjourning the trial of the case to 24.7.2001, 7.8.2001, 21.8.2001 and 29.8.2001 for securing the attendance of the I.O., N.C. Naik, who did not care to turn up inspite of issuance of W.T. Message. At last on 11.9.2001 to which the case was posted for further cross-examination of the so called I.O., who defaulted in appearance disobeying the court’s order, the impugned order was passed with the following observation.
“Record shows that the defence has not yet deposited a sum of Rs. 500/- towards tentative expenses of P.W. 12. Pursuant to order dt 30.4.2001. In such premises, I am not inclined to waste anymore time by waiting for appearance of P.W. 12 for further cross-examination. Hence, call on 19.9.2001 for recording statement of accused persons. Accused persons be present on that date.”
3. The Learned counsel Shri G.N. Mohapatra, appearing for the petitioners has raised only one contention stating that the order impugned in the revision directing payment of Rs. 500/- towards expenses of P.W, 12 for cross-examination is not sustainable, in support of which he has relied upon (1999) 17 OCR. 364, (Rajaram Pattnaik v. K. K. Ayyar, Secretary Indian Metals and Ferro Alloys Ltd. Bhubaneswar). On the other hand, the learned Additional Standing Counsel Sri Satyabrat Pradhan appearing for the State rather conceded to the aforesaid contention having nothing to refute the same. On the reported case, the petitioner challenged the impugned order dt. 19.7.1999 passed by the learned Magistrate directing him to deposit Rs. 12,000/- to meet the expenses of the witnesses sought to be recalled for further cross-examination. It is held therein that the Magistrate is to summon witnesses and make payment of their expenses as per Orissa Criminal Court Witnesses (Payment of Expenses) Rules, 1963. Under Rule 3(a)(ii) of the said Rules, Criminal Court is to make payment to the witnesses of
their expenses where the offence alleged is a non-bailable one. The State Government framed the above rules which continue to remain in force. In addition to that Section 312 of the Code of Criminal Procedure, which deals with expenses of Complainant and witnesses make it manifestly clear that subject to any rule made by the State Government, any Criminal Court, may if it thinks fit, order payment on the part of the Government, of the reasonable expenses of any complaint or witnesses attending for the purpose of any enquiry, trial or other proceeding before such court under this Code. The State Government having been empowered by Section 312 Cr.P.C. framed the Orissa Criminal Court Witnesses (Payment of Expenses) Rules, 1963, which are in vogue.
4. Coming to the present case, it is seen that the petitioners, who have been put upon trial for non-bailable offences punishable under sections 147, 148, 323, 294, 302/143 of the Indian Penal Code cannot be directed to deposit Rs. 500/- towards the expenses of P.W. 12 in view of the rules quoted above.
5. Before parting with the judgment, I feel it expedient and desirable for the guidance of the learned trial Judge that Section 311 Cr.P.C. empowers him to summon any person as witness or examine any witness in attendance though not summoned as a witness or recall and re-examine any person already examined at any stage of enquiry, trial or proceeding under this Code if his evidence appears to him to be essential to the just decision of the case. In the present case, as I have understood from the materials placed before me during the course of hearing that on 30.4.2001 P.W. 2 was further cross-examined and discharged. Since he was confronted with his previous statement made to the I.O. during investigation of the case, the defence prayed to recall P.W. 12 I.O.) for confrontation of the said statement of P.W. 2 No-doubt, the learned trial Judge made several attempts to secure the attendance of the so called I.O. by issuing W.T. messages repeatedly yet, he did not turn up for which the trial Judge closed up the evidence from the side of the prosecution and proceeded for recording of the accused statement and thereby committing illegality as the petitioners will be prejudiced if the I.O. (P.W. 12) is not further cross-examined for the reasons recorded above. In such a view of the matter and particularly when the learned trial Judge summoned the witnesses several times for his further cross-examination, he should not have closed the evidence from the side of the prosecution thereby denying the petitioners the opportunity of further cross-examining the I.O., who is a material witness in the facts and circumstances of the case. Therefore, suffice it to say that petition seeking to recall a witness for re-examination or further cross-examination as contemplated
under Section 311, Cr.P.C. cannot be rejected on the ground of delay or any other technical ground, in this regard, reliance can be placed on Vol. 50 (1980) CLT 443 (Bhagaban Behera v. Maheswar Behera and Ors.), 1991 Crl.L.J. 1821 (Mohanlal Shamji Soni v. Union of India and Anr.), vol. 78 (1994) CLT 982 (Pradeep Kumar Agarwal v. State) and 1997 (II) OLR 75 (Harihar Singh and Ors. v. State of Orissa) wherein the principles behind recalling a witness for re-examination or further cross-examination have been highlighted.
6. While applying the principle, the Court is called upon to examine whether such re-examination of further cross-examination of the witness is necessary for a just decision of the case. In the instant case, though the trial Judge initially never rejected the prayer of the petitioner to recall the witness for further cross-examination, but he thought it to be waste of time to wait further for appearance of P.W. 12 (I.O.) for further cross-examination. Hence, he closed the prosecution side, which is improper and not justiciable in view of the settled position of law referred to above. Vol. 89 (2000) CLT 420 (Niranjan Patra and Ors. V. C.J.M., Cuttack and Anr.) may also be referred to in this regard.
7. In the ultimate analysis, I hold that the impugned order of the trial Judge being not reasonable is hereby set aside. The revision is allowed. The learned trial Judge is hereby directed to secure the attendance of the material witness like P.W. 12 (I.O.) for his further cross-examination by resorting to Section 350 of the Code of Criminal Procedure and by the by directing Superintendent of Police concerned under whom he is working at present to see that he appears before the Court for the purpose for which he is required.
8. Revision allowed