PRAFULLA KUMAR SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner is aggrieved by order dated 17.8.2002 passed by the learned Additional Sessions Judge -cum -C.J.M., Bhadrak in S.T. Case No. 109/112 of 1998 allowing the application of the prosecution to examine further witnesses.

(2.) THE contention of the learned counsel is that since the learned Addl. Sessions Judge by order dated 18.7.2002 on the basis of the Memo filled by the prosecution, directed closure of the evidence, allowing an application under Section 311, Cr.P.C. would amount to recalling the order which is impermissible. The learned counsel for the petitioners cited a decision of the Apex Court in Bindeswari Prasad Singh v. Kali Singh, AIR 1977 Supreme Court 2432 in support of his contention. In that case the Apex Court held that when a Magistrate by a judicial order giving full reason, dismissed the complaint, even though the Magistrate had any jurisdiction to recall the order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. The decisionreferred to has no application to the facts of the present case nor for the proposition raised. The submission that the Magistrate is not empowered to recall a witness or direct examination in terms of the provision of Section 311, Cr.P.C., made by the learned counsel is thoroughly misconceived. Section 311 of the Code itself vests the criminal Courts with ample power at any stage or any enquiry, trial or other proceeding to summon any person as a witness or examine any person in attendance or recall and re -examine any person already examined, if evidence of such person appears to the Court to be essential to the just decision of the case.

(3.) IN the case at hand, therefore, even if the learned trial Court by order dated 18.7.2002 direct closure of the prosecution witness, if on the application of the prosecution, it was satisfied that for a just decision, in the case, the prosecution should be allowed to examine a person, who was cited as a charge -sheet, witness, it cannot be faulted nor such action of the learned trial court would be contrary to the provision of law.