DOLAGOVINDA PRADHAN AND OTHERS Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioners, being the accused in S.T. Case No. 240 of 2012 assail the order dated 28.02.2017 passed by the learned Assistant Sessions Judge, Cuttack, whereby application filed by the prosecution to recall P.W.7 was allowed.

(2.) Initially, the petitioners were charge-sheeted for the offence under Sections 147, 148, 294, 307, 506, 379, 354 and 427/149 of the IPC in the aforesaid case. After examination of certain witnesses, the charge was altered and additional charge under Section 216 IPC was added. Thereafter, the Court recalled all the witnesses for further cross-examination on the additional charge. P.W.7 was examined on recall and it is the case of the informant as well as the case of the prosecution that the said witness presumably resiled from the stance he has taken while giving statement before the police and recorded under Section 161 Cr.P.C., 1973 the examination in-chief and the cross-examination that immediately followed. Therefore, they filed an application to recall P.W.7 for further cross-examination by the prosecution by declaring him hostile witness. The petition was allowed. The learned Sessions Judge took into consideration the settled principles of law that a petition under section 154 of the Indian Evidence Act is maintainable even after cross examination of witness by the defence when he supported the prosecution case in-chief but resiles from such stance in the cross-examination. That direction lies with the Court to permit the person, who calls a witness to put leading questions as the circumstances demand. The learned counsel for the petitioners argues that as per the procedure laid down under Section 138 of the Evidence Act, the examination in-chief is to take first, then the cross-examination has to be made and if any new material has come out, then the cross-examination has to be made and if any new material has come out, then the party calling the witness may have re-examined the witness. It is argued by the learned counsel for the State, the intervener and the Amicus Curie relying upon certain judgments of different Courts that section 154 of the Indian Evidence Act can be invoked by the Court at any stage. It is appropriate to take note the exact words used in section 154 of the Indian Evidence Act. It reads as follows:

(3.) A plain reading of the aforesaid provision manifestly makes it clear that it does not specify the stage at which a party, who calls a witness, shall be allowed to put such questions, which were allowed to be put to the witness in cross-examination, by the adverse party. Section 154 of the Evidence Act is the enabling section recognizing the jurisdiction of the Court to allow a party to cross-examine his own witness. It is apparent from the provision itself that the legislature in its wisdom has not put any restriction on the exercise of power under Section 154 of the Act as well the Court cannot read into the Section 154 of the aforesaid act and restrict the scope of the same by virtue of section 137 of the Indian Evidence Act.