CRLMC/2528/2026 of SUBHENDU KUMAR BEHERA @ SUBHENDU BEHERA Vs STATE OF ODISHA on 18 August 2026

ORDER

18.08.2026 Order No.

02.

1. This matter is taken up through Hybrid Mode.

2. Heard learned counsel for the Petitioner as well as learned counsel for the State-O.P. No.1. Perused the CRLMC application as well as the documents annexed thereto.

3. By filing of the present application under section 482 of the Cr.P.C., which corresponds to Section 528 of the BNSS, the Petitioner-accused in T.R case No.28/50 of 2024/2022 pending in the court of learned Adhoc Additional Sessions Judge (FTSC), Puri which corresponds to Krushnaprasad P.S case No.54 of 2022 which was registered for alleged commission of offence punishable under section 376 (3), 506, 34 of IPC read with section 6 of POCSO Act has approached this Court thereby challenging order dated

11.05.2026 passed by the abovenamed court on an application filed by the accused-Petitioner under section 311 Cr.P.C to recall PW4 (victim) for her further cross-examination.

4. Learned counsel for the Petitioner, at the outset, contended that initially an FIR was lodged at Krushnaprasad Police Station which was registered as PS case No.54 of 2022 for commission of offences as has been indicated hereinabove. On the basis of the FIR allegation, the aforesaid PS case was registered and, accordingly, investigation was carried out. After conclusion of the investigation, charge sheet has been filed and the case has been committed for trial. During the trial, the victim, who is a minor, was initially examined by the trial court. Initially, cross-examination was declined on behalf of the defence. However, on the request of the defence, such victim was again recalled for cross-examination and her cross-examination was done substantially. Thereafter, another application was filed seeking further cross-examination of the victim, which was allowed subject to payment of a cost of Rs.2,000/-. In the meantime, as stated by learned counsel for the Petitioner, the cost has already been deposited and the victim was asked to appear on 11.12.2025.

5. On perusal of the impugned order dated 11.05.2026, at Annexure-3, it is revealed that pursuant to such order by the learned trial court recalling the victim for further cross-examination, the victim appeared before the court on 11.12.2025 to face further cross-examination. However, the learned counsel appearing on behalf of the defence did not show up in the court and, accordingly, cross-examination was declined. On a careful analysis of the impugned order dated 11.05.2026, it appears that the victim appeared before the learned trial court on three occasions for recording of her evidence, including cross-examination. Again, another application was filed to recall PW4 (victim) for her further cross-examination, which has been rejected by the learned trial court vide its order dated 11.05.2026 by passing a speaking and detailed order which has been assailed in the present application.

6. Learned counsel for the Petitioner, at the outset, contended that such further cross-examination of the victim is necessary for a just decision in the present case. He further contended that denial of such right to the accused to cross-examine the victim would take away the valuable right of the accused cause serious prejudice to the accused, and that the same would be against the very spirit of Section 311 of the Cr.P.C. In such view of the matter, learned counsel for the Petitioner contended that the learned trial court has committed an error by rejecting his prayer to recall PW4 (victim) for her further cross-examination.

7. Learned counsel for the State, on the other hand, seriously objected to the prayer made in the present application. Learned counsel for the State contended that the accused-Petitioner was granted several opportunities to cross-examine and in one such occasion, the victim has been substantially cross-examined by the defence. Further, referring to the impugned order dated 11.05.2026, learned counsel for the State contended that there exists no necessity to further recall the victim in this case. It was also contended that such power under Section 311 conferred upon the trial court is discretionary in nature and that exercise of such power is also subject to satisfaction of the learned trial court. In the present case, the learned trial court has expressly narrated the opportunities granted to the defence to cross-examine the victim. On such ground, learned counsel for the State contended that the present application, being devoid of merit, is liable to be dismissed.

8. Having regard to the submissions made by counsels appearing for both sides, on a careful examination of the background facts as well as on a close scrutiny of the impugned order dated 11.05.2026, this Court observed that on the prayer of the accused-Petitioner, the victim was recalled twice for her further cross-examination. At the time of examination of the victim initially, the accused-Petitioner declined cross-examination. Thereafter, the victim was recalled for her further cross- examination and, on such date, the victim was substantially cross- examined. Being unsatisfied with the cross-examination of the victim, again another application was filed to recall the victim for further cross-examination subject to payment of a cost of Rs.2,000/-. Though the cost has been paid, none appeared on behalf of the defence on 11.12.2025 to cross-examine the victim who was present in court. Although the learned counsel for the Petitioner took a stand that the conducting counsel was ailing and was hospitalized, no such material was produced before the learned trial court at the time of consideration of the application filed by the accused-Petitioner under Section 311 of Cr.P.C.

9. On a careful analysis of the conduct of the defence in the present case, on a further considering the fact that the victim was recalled repeatedly on several occasions, this court is of the view that allowing the defence to further recall the victim-PW4 would be against the spirit of Section 33(5) of the POCSO Act, 2012. Moreover, such repeated recall of the victim would cause harassment to a minor girl. Section 35(2) of the POCSO Act provides that the trial is required to be concluded within a period of one year from the date of taking of cognizance. Taking into consideration the delay in such type of cases, the legislature has enacted a special law giving protection to the victim and fixing a stipulated time for conclusion of the trial. In the event this Court allows this application, it would be against the spirit of the statute, i.e., the POCSO Act, 2012. Additionally, this Court finds no infirmity in the order dated 11.05.2026 passed by the learned trial court while rejecting the prayer of the Petitioner to recall the victim-PW4 for her further cross-examination. Further, the scope of this Court, in exercise of its inherent power under Section 528 of the BNSS, is very limited and such power cannot be exercised in a routine manner to interfere with each and every order that is passed by the learned trial court in course of trial. In view of the aforesaid analysis of the legal as well as the factual position, this Court is not inclined to entertain this application.

10. Accordingly, the CRLMC application stands dismissed.

( A.K. Mohapatra )

Judge

Anil

Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 19-Aug-2026 19:39:14 Signature Not Verified