JADUMANI MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE accused -petitioners' application under Section 231(2) read with Section 311, Cr.P.C. to recall P.Ws. 1 and 2 for further cross -examination having been rejected by the learned Additional Sessions Judge, Khurda by order dated 6.12.1997, the petitioners have approached this Court in this petition under Section 482, Cr.P.C.

(2.) THE petitioners were accused in a case punishable under Sections 498 -A/304 -B/302/34, IPC and under Section 4 of the Dowry Prohibition Act in Khurda P.S.Case No. 7 of 1996 corresponding to G.R.Case No. 29 of 1996 and presently pending in the Court Additional Sessions Judge, Khurda in S.T.No. 11/37 of 1997 for trial. The petitioners after examination of some prosecution witnesses, filed an -application under Section 231(2) read with Section 311, Cr.P.C. for recalling P.Ws. 1 and 2 for further cross -examination mainly on the ground that the counsel for the accused -petitioners was suffering from mental disturbance and severe headache on 1.9.1997 when P.W. 1 -informant and his wife -P.W.2 were examined and as such could not make effective cross -examination on several material aspect to confront them with the FIR as well as the statements recorded by the police under Section 161, Cr.P.C.

(3.) THE learned counsel for the petitioners submitted that in the peculiar facts of the case when the learned counsel for the accused -petitioners in the Court below was in a mental disturbance and was suffering from severe headache, he was not in a physical mental state and able to effectively cross -examine these two witnesses and such ground should have weighed in the mind of the learned trial Judge and the application ought to have been allowed in the interest of justice specially when those witnesses who were father and mother of the deceased lady, deposed regarding the non -payment of dowry and consequential torture. The State counsel, however; submits that though a witness can be recalled at any stage in a criminal proceeding in terms of the aforesaid provision of law, such a procedure can be adopted only when the Court is satisfied that the same is essential for a just decision of the case.