CRLMC/2449/2026 of SATYA SWAIN Vs STATE OF ODISHA on 18 August 2026

ORDER

18.08.2026 Order No.

01.

1. This matter is taken up through Hybrid mode.

2. Heard learned counsel for the Petitioner as well as the learned Additional Government Advocate. Perused the CRLMC application as well as the prayer made therein.

3. By filing the present application under Section 528 of the B.N.S.S., the accused-Petitioner in Special G.R. Case No.44 of 2021, which is pending for trial before the learned Additional District Judge-cum-Special Judge (POCSO), Sundargarh and corresponds to Bonai P.S. Case No.41 dated 09.04.2021 which registered for alleged commission of offence punishable under Sections 451, 376(1), 307 of I.P.C. read with Section 6 of the POCSO Act, has approached this Court thereby challenging order dated 29.04.2026 passed in the aforesaid Special G.R.

Case by the learned Sessions Judge-cum Special Judge, (POCSO), Sundargarh, thereby rejecting the Petitioner’s application under Section 311 Cr.P.C. with a prayer to recall the victim-informant for her further cross-examination.

4. Learned counsel for the Petitioner, at the outset, contended that during the trial of the aforesaid case, the victim was examined, cross-examined and then she was discharged. Later on, it was found that certain pertinent questions based on the statement of the victim under Section 164 of the Cr.P.C. were not put to her. Accordingly, an application under Section 311 Cr.P.C. was filed on behalf of the accused-Petitioner along with a questionnaire. The questionnaire which has been appended to the application under Section 311 Cr.P.C., at Annexure-3, reveals that the defence wanted to ask five specific questions relating to the statement of the victim recorded under Section 164 of the Cr.P.C. Such application having been rejected by the learned trial court, the Petitioner has approached this Court with a prayer to permit him to recall the informant for her further cross-examination by setting aside the impugned order dated 29.04.2026, at Annexure-4. Learned counsel for the Petitioner further contended that in view of the provision contained in Section 311 Cr.P.C., the trial court is not devoid of power to recall any witness, at any time, for a just decision of the case. He further submitted that taking into consideration the severity and magnitude of the punishment that has been prescribed for the offences alleged against the present Petitioner, the learned trial court should have taken a liberal view and should have permitted the Petitioner to recall the informant for her further cross-examination. Having failed to do so, it is alleged that the learned trial court has committed an illegality and that such illegality is likely to cause serious prejudice to the Petitioner.

5. Learned counsel for the State, on the other hand, contended that the learned trial court has not committed any illegality in rejecting the Petitioner’s prayer under Section 311 Cr.P.C to recall the informant for her further cross-examination. In the aforesaid context, learned counsel for the State referred to the provisions contained in the POCSO Act and submitted before this Court that the learned trial court could not exercise the power of recall so far, the informant-victim is concerned in a routine manner. It was also contended that the questions sought to be asked to the informant during her further cross- examination on her recall are not relevant as the statement of the victim recorded 164 of the Cr.P.C has already been marked as exhibit. Thus, the statement of the victim which is on record can very well be used for the purpose of confrontation. In such view of the matter, learned counsel for the State contended that the application is devoid of merit and, accordingly, the same should be dismissed.

6. Having heard the learned counsels for the respective parties, on a careful examination of the background facts as well as the impugned order dated 29.04.2026, this Court observes that the Petitioner has approached this Court by filing the present application under Section 482 of the Cr.P.C with a prayer for quashing of the order dated 29.04.2026 and for a further direction to recall the informant-victim in this case for her further cross-examination. On a careful examination of the impugned order dated 29.04.2026, this Court found that the learned trial court, while considering the application of the Petitioner under Section 311 Cr.P.C, has taken note of every aspect of the matter as well as every contention raised by both sides. The impugned order further clearly reveals that the statement of the victim recorded under Section 164 Cr.P.C. has already been marked as exhibit. Therefore, the same is already on record. The learned trial court has also observed that the victim has been examined and cross-examined and that her statement under Section 164 Cr.P.C. has already been exhibited through her evidence. The learned trial court has gone on to further observe that once the victim statement is duly exhibited, the contents thereof form the part of record. It has also observed that during cross-examination the defence has already confronted the victim regarding omission in her earlier statement under Section 161 of Cr.P.C, which the victim has denied. Thus, no further confrontation is necessary for the purpose of brining the alleged contradictions on records.

7. In the aforesaid factual backdrop, this Court is of the view that there is no necessity to recall the victim-P.W-9 for her further cross-examination as her statement under Section 164 Cr.P.C has already been marked as exhibit. Moreover, recalling such witness at this belated stage would only cause delay in the conclusion of the trial. Furthermore, taking into consideration the provisions contained in the POCSO Act, the power to recall the victim as a witness should not be exercised in a routine manner and that the trial is to be concluded in a time bound manner. Keeping in view the aforesaid analysis and the objective behind the enactment of the POCSO Act, this Court is not inclined to exercise its inherent power under Section 528 of the B.N.S.S. However, while disposing of the present application, this Court observes that the learned trial court while delivering the final judgment shall take into consideration the statement of the victim recorded under Section 164 of the Cr.P.C, as well as confrontations that has been elicited in course of trial by the defence.

8. With the aforesaid observations and directions, the CRLMC stands disposed of.

Rubi

(Aditya Kumar Mohapatra)

Judge

Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: OHC Date: 20-Aug-2026 11:16:54 Signature Not Verified