SUBASH CHANDRA PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This criminal misc. case is directed against the order dated 5.12.1997 passed by the learned First Addl. Sessions Judge, Berhampur in S.C. No. 3/95 (S.C. 3/95 GDC).

(2.) The facts of the case in brief are as follows:

(3.) The learned counsel appearing for the petitioners contended that Sec. 311 is equally applicable to the accused persons and under the said provision they are entitled to recall a witness for further cross-examination for the ends of justice. It is further contended that assuming that Sec. 311 is not applicable, there was no person not to allow the petition to recall the P.W.8 for further cross-examination under Sec. 243, Cr.P.C. It is also contended that when the case stood posted to 17.12.1997 for adducing evidence in defence and the petitioners on 5.12.1997 filed the petition along with the list of witnesses to be summoned as defence witnesses, the order passed by the learned first Addl. Sessions Judge rejecting the petition to summon the witnesses is illegal and prejudicial to the accused persons. The learned Addl. Standing Counsel, however, supported the impugned order. From the copy of the petition vide Annexure-1 filed before the learned First Addl. Sessions Judge, it appears that the petitioners wanted to recall the P.W.8 and other two persons as a defence witness. It is submitted that after examination of the P.W.8 by the prosecution the defence also cross-examined him at length. It is also not the case of the petitioners that they were not given opportunity to cross-examine the said witness. The proviso to Sec. 243, Sub-section (2) clearly lays down that when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. In the old Code, Sec. 257 contained similar provisions and this Court in Nilap Naga v. Malati Dei, Vol.38 (1972) CLT 289 has also taken the view that where the accused had cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under Sec. 257 of the Criminal Procedure Code, 1898 unless the Magistrate is satisfied that it is so necessary for the ends of justice. It has also been observed that in such cases the accused has no absolute and unfettered right to ask the Court to summon the witness for cross-examination. In the petition it has simply been stated that further cross-examination is necessary as in the meantime the P.W.8 who is the informant in this case has become aware of certain materials which should reveal the identity of the actual culprit. But the petition is silent about the materials and no affidavit is filed by the informant in support of the above contention. Therefore, the order passed by the learned Magistrate refusing to summon the P.W.8 as a defence witness does not warrant interference by this Court. The petitioners cannot also take advantage of Sec. 311, Cr.P.C. at they cross-examined the said witness at length and the Court does not feel that further cross-examination is necessary for the ends of justice.