Chema @ Sanatan Mandal vs State Of Odisha & Another

D.Dash, J

The matter is taken up through hybrid arrangement (virtual/physical mode).

The petitioner, by filing this revision, has called in question the legality and propriety of order dated 07.07.2022 passed by the learned Ad-hoc Additional Sessions Judge (FTSC), Balasore in Special Case No.323 of 2018.

By the said order, the application filed by the Petitioner under section 311 of the Cr.P.C. for recall of the victim (P.W.1) for cross-examination has been rejected.

Learned counsel for the Petitioner submits that when the victim was examined as P.W.1 on 08.11.2021, learned counsel for the Petitioner (accused) being not ready could not cross-examine and, therefore, when afterwards prayer was made for recall of P.W.1 for cross-examination, the same has been rejected citing the ground that the victim cannot be left at the mercy and sweet will of the accused for being cross-examined when the provision contained in section 33(5) of the POCSO Act cautions that there be no repetition for a child witness in testifying before the court. He further submits that the victim is aged around 17 years and there being no cross-examination at all from the side of the defence so as to ascertain the veracity of her testimony when she has stated that this Petitioner (accused) having not disclosed certain material facts concerning himself had established the sexual relationship with the victim. In view of the above, he contends that unless the prayer of this Petitioner for cross-examination of P.W.1 is allowed, prejudice would be writ large and practically the evidence of P.W.1 would remain untested which would amount to denial of fair trial.

Learned counsel for the State does not dispute the position that the victim (P.W.1) has not at all been cross-examined. He, however, submits that there has been a growing tendency in the present days that the defence is not cross-examining the victim on the very first date and thereafter taking the chance by filing such type of application for the reasons best known to them, which thus is required to be dealt with stern hands.

Keeping in view the submissions made, the impugned order being gone through, it is seen that the victim being examined on 08.11.2021 was not cross-examined by the Petitioner (accused) on that day and subsequently the application has been filed for recall of P.W.1 for facing the cross-examination.

In the above situation, the Petitioner having not availed the opportunity to cross-examine P.W.1, if not so permitted, since the evidence would remain totally untested with regard to its reliability, the conclusion of the trial may not be fair. In that view of the matter, this Court is of the view that the impugned order suffers from the vice of illegality and as such is liable to be set aside, which is so done hereby.

The Petitioner (accused) is hereby directed to appear before the Trial Court on 18th May, 2023 and deposit a sum of Rs.5,000/-(Rupees five thousand) towards cost so as to receive further instruction in that regard. The Trial Court in that event would do well to fix a particular date for cross-examination of the victim (P.W.1). It is, however, made clear that in the event the Petitioner (accused) fails to avail the opportunity on that date, regard being had to the provision contained in section 33(5) of the POSCO Act, no further opportunity would be granted.

In the result, the Revision stands allowed.

Issue urgent certified copy as per rules.

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