MATHURANANDA MALLICK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision petition has been filed by the petitioner Mathurananda Mallik to set aside the order dated 15.09.2016 passed by the learned Additional Chief Judicial Magistrate (Special), Cuttack in V.G.R Case No. 78 of 1997 in rejecting the petition filed by the petitioner who is an accused in the said case for recalling the P.W.7 and P.W.8 for cross-examination.

(2.) It appears that P.W. 7 Jamila Rasid Khan and P.W. 8 Rabindra Kumar Jena were examined on 16.03.2016 by the prosecution but their cross-examination was declined by the defence on that day. On that date, the accused was not present and the defence counsel filed a petition under Section 317 Cr P.C. on the ground that the petitioner was unable to come to Court due to his illness which was accordingly allowed by the Trial Court and accordingly in presence of the defence counsel, two witnesses P.W.7 and P.W.8 were examined. No application was filed on behalf of the defence on that day to grant time for cross examination the witnesses on the other hand the learned defence counsel declined to cross-examine those two witnesses. It appears that those two witnesses are the seizure witnesses The deposition copies have been annexed to the revision petition On 02.08.2016 an application under Section 311 Cr.P.C. was filed by the petitioner in the Trial Court through his counsel to recall P.W.7 and P.W. 8 on the ground that they have not been cross examined and he will be seriously prejudiced in the event he is deprived of his valuable rights of cross-examination The learned Trial Court vide impugned order dated 15.09.2016 has been pleased to observe that P.W.7 and P.W.8 are the witnesses to the seizure of one admission register by the Vigilance Police from the Head Master of Anyaspur Government M.E. School, Jajpur and by that time they were the Assistant Teachers of the said school. The petition dated 02.08.2016 was filed when the evidence from the side of the prosecution was closed. The learned Trial Court further observed that it is a case of the year 1997 and therefore, there is no reasonable and sufficient ground to recall P.W.7 and P.W.8 and accordingly rejected the petition being devoid of merit.

(3.) Learned counsel for the petitioner Mr. Ganesh Prasad Samal contended that on that particular day when P.W.7 and P.W.8 were examined, the Senior Counsel who was engaged by the petitioner was suffering from Malaria and he was in a position to attend the Court for which the witnesses could be cross-examined by the junior counsels. The learned counsel for the petitioner further submitted that the petitioner is ready and willing to bear the cost of the witnesses which would be imposed on him to recall P.W.7 and P.W 8 for the purpose of cross-examination. The learned counsel for the petitioner contended that though it is a case of the year 1997, the petitioner is no way responsible for the delay in the trial and in fact only nine witnesses were examined by the prosecution and the case was closed and one opportunity may be provided to the petitioner to cross-examine P.W.7 and P.W. 8.