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2026 DAILYLAW 27254 (ORI)

Jagadish Kumar Muni v. State of Odisha

2026-01-22

Sanjeeb K Panigrahi

body2026
JUDGMENT : Sanjeeb K Panigrahi, J. 1. The Petitioner has instituted the present Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure, 1973/ Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023, invoking inherent jurisdiction of this Court, seeking recall of PW-29 and PW-41 for the limited purpose of further examination, so as to clarify and complete their testimonies on certain material and relevant issues arising during the course of trail. I. F ACTUAL M ATRIX OF THE C ASE 2. The brief facts of the case are as follows: (i) The Petitioner is the son of the deceased, Late Lambodhar Muni, and is also the victim within the meaning of the criminal jurisprudence. The present petition is being filed by the Petitioner invoking the inherent jurisdiction of this Court under Section 528 of BNSS, 2023. (ii) The deceased, was the proprietor of a distributor firm of Heritage Milk & Milk Products, and owing to the nature of his business, he used to reside for most of the time at his office-cum-residence, where he ordinarily spent the greater part of his day. (iii) On the intervening night of 13/14.06.2020, the deceased, was brutally murdered during the commission of a dacoity at his office-cum-residence at Berhampur, as is borne out from the expert evidence available on record. (iv) Upon entry into the office-cum-residence, it was found that the back gate was open and the lock thereof was broken. The deceased was found lying on the floor of a room near the bed on the ground floor of the premises. Further, suspected bloodstains were noticed inside the said room, and one screwdriver, two mobile phones, and one small pink colored towel having suspected bloodstains were recovered from the place of occurrence. (v) Thereupon, the steel Godrej almira was found lying open and its contents were found scattered. On verification, it was revealed that valuable articles belonging to the family, including office cash and gold ornaments, were missing. The said office cash had not been deposited in the ICICI Bank, Berhampur, due to the COVID-19 outbreak, during which period regular daily transaction could not be carried. (vi) That the manner in which the investigation was conducted by the Gosaninuagaon Police after registration of the FIR gave rise to serious suspicion and grave doubt regarding the fairness, imparity and authenticity of the investigation. (vi) That the manner in which the investigation was conducted by the Gosaninuagaon Police after registration of the FIR gave rise to serious suspicion and grave doubt regarding the fairness, imparity and authenticity of the investigation. Being dissatisfied with the said investigation, the petitioner approached this Court, seeking appropriate relief. Although this Court were not inclined to transfer the investigation to the CBI, it was pleased to direct the State Investigating Agency to undertake further investigation in the matter. (vii) Thereafter, during the course of trial, PW-41, deposed with regard to the collection of biological and other physical evidences from the scene of crime; however, he inadvertently omitted to state in his deposition about the crucial fact that, during the scientific examination of the scene of crime, chance fingerprints were detected. (viii) Upon such omission assumes critical significance inasmuch as the contemporaneous documentary record clearly establishes that two partial latent chance fingerprints marked as ‘A’ and ‘A1’ were detected on the outer surface of the safe-lock door of the steel almirah. (ix) Pursuant thereto, the State Print Bureau, Bhubaneswar, after conducting a scientific examination, rendered an opinion that the chance fingerprints marked as ‘A’ and ‘A1’ were identical with the right middle finger and right ring finger impressions of the accused. During the course of trial, the fingerprint expert was examined as PW-33 and the Finger Print Examination Report was duly exhibited. However, owing to an inadvertent omission in the deposition, the said evidence has remained incomplete on record. (x) Thereupon, during the final arguments, the defence specifically raised an objection regarding the absence of oral evidence pertaining to lifting and seizure of chance of fingerprint. The Learned Addl. District & Session Judge accordingly posed a query in that regard. However, instead of seeking a recall of the relevant witness to clarify the omission, the prosecution elected to advance its submission by placing reliance solely upon the documentary evidence on record. (xi) Upon appreciating the gravity of the situation and with a view to preventing a miscarriage of justice, the petitioner filed an application under Section 348 of BNSS/Section 311 of CrPC seeking recall of the concerned witness for completion of testimony. However, the learned Trial Court rejected the said application on ground that such a prayer was required to be routed through the learned Public Prosecutor. However, the learned Trial Court rejected the said application on ground that such a prayer was required to be routed through the learned Public Prosecutor. (xii) On 15.12.2015, when the matter was listed for further arguments, an associate of the petitioner’s counsel was physically present before the learned Trial Court at Berhampur. However, the arguing counsel for the petitioner was unable to participate through virtual mode due to non-provision of access in relation to the issue of recall of the petition, as a result of which the said petition could not be formally presented before the learned Trial Court. (xiii) The present case arises out of a Sessions Trial concerning the death of the Petitioner’s father, wherein the trial has been concluded in all respects and the matter presently stands at the stage where judgment has been reserved by the learned Lower Court. (xiv) In the aforesaid circumstances, the petitioner is constrained to invoke the inherent jurisdiction of this Court under Section 528 of BNSS/Section 482 of CrPC, inasmuch as the learned Trial Court has already reserved the judgment and the prosecution has concluded its case, thereby leaving the petitioner with no other efficacious alternative remedy. Being aggrieved by the aforesaid facts and circumstances, the Petitioner has been constrained to approach this Court by way of the present CRLMC. II. C OURT ’ S R EASONING AND A NALYSIS 3. Heard Learned Counsel for parties and perused the documents placed before this Court. 4. In light of the forgoing facts, the Court is of the considered view that the principal issue that arises for determination is whether recall and examination of the witness and adducing further evidence, as sought by the Petitioner, are just, necessary, and essential for the proper adjudication of the case. 5. Section 311 of the CrPC/ Section 348 of BNSS confers wide discretionary power upon the Court. The said provision empowers that “any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in attendance, though not summoned as a witness, or recall an re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it to be essential to the just decision of the case”. 6. 6. The power conferred under Section 311 of the Code is undoubtedly wide; however, such power is required to be exercise sparingly and in judicious manner, and not arbitrarily. The invocation of the said provision must be directed towards the discovery of relevant facts and the proper proof thereof, so as to ensure the ends of justice, while at the same time not causing prejudice to either of the parties. 7. Emphasizing that purpose of Section 311 of the Cr.P.C. is to unearth the truth and secure a just verdict by considering all relevant facts observed that: “The very usage of the expressions in the Section i.e. “any court” and “at any stage” clearly spells out that the section is expressed in the widest possible terms and do not circumscribe or limit the discretion of the court in any way”. 8. The power under Section 311 of the CrPC cannot be exercised at such a belated stage where the matter is reserved for the Judgment by the Learned Sessions Court, Berhampur. 9. If such arguments are allowed, the trial would be a never-ending endeavor. The paramount requirement for consideration to exercise jurisdiction under Section 311 Cr.PC is whether calling of a witness is necessary for the just decision of the case. But when the Judgment is in the reserved stage the conclusion cannot be drawn through the presumption that evidences were not taken into record. 10. There can be no doubt that at the stage of trial, the trying court is the best suited to judge the factual aspect of a criminal trial and importance of each and every witness examined or to be examined during the course of trial. Until and unless the Trial Court commits a manifest error of fact or law, the decision taken by it in an application under Section 311 Cr.PC should not be interfered. 11. Similar interpretation was reiterated by the Supreme Court in the Vijay Kumar v. State of U.P. , 2011 (8) SCC 136 , wherein it has been held that: “14. There is no manner of doubt that the power under Section 311 of the Code of Criminal Procedure is a vast one. This power can be exercised at any stage of the trail. There is no manner of doubt that the power under Section 311 of the Code of Criminal Procedure is a vast one. This power can be exercised at any stage of the trail. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasised that power under Section 311 should be exercised for the just decision of the case. The wide discretion conferred on the court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not would largely depend upon the facts and circumstances of each cases. As provided in the section, power to summon any person as a witness can be exercised if the court forms an opinion that the examination of such a witness is essential for the just decision of the case.” Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provision of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.” 12. Similarly the Supreme Court in the Varsh Garg v. The State of Madhya , AIR 2022 SC 3707 , wherein it has been held that: “29. The first part of the statutory provision which uses the expression “may” postulates that the power can be exercised at any stage of any inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression “shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential the just decision of the case”. Essentially of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. Essentially of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.” 13. It is further clarified that the statutory provision underscores that the Court is not a passive or helpless bystander in the derailment of justice. On the contrary, the Court plays a vital and proactive role as an instrument in the realization of justice. However, such power to be exercised with great caution and circumspection, keeping in mind the need to balance the interests of justice with the avoidance of prejudice or undue delay. 14. In the present case, the Petitioner was afforded ample opportunities to exercise the rights available to him in the course of the proceedings: Firstly , the petitioner filed an application under Section 348 of BNSS/Section 311 CrPC seeking recall of the witness for completion of testimony. The same was, however, not entertained by the learned Trial Court on the ground that the application was not filed in the prescribed manner, namely, that it ought to have been routed through the learned Public Prosecutor, which requirement was not complied with by the Petitioner. Secondly , the matter was listed on 15.12.2025 for the arguments, and the associate of the arguing counsel for the petitioner was physically present before the Trial Court. However, the arguing counsel was unable to join through virtual mode. In any event, if the petition for recall of the witness was truly essential for the ends of justice, the same could have been presented by the associate, who was in attendance in court. 15. It is also noted that the advocate engaged on behalf of the Petitioner has been representing the case from the stage of inspection of the record until its conclusion, which clearly indicates that he was aware of all material particulars, including the subject matter in dispute. It is a well-settled presumption that a counsel conducting a case is competent, particularly where the counsel has been appointed by the choice of a litigant. 16. In the present case, the Petitioner approached this Court invoking its inherent jurisdiction at a stage when the matter has been reserved for judgment by the Trial Court. It is a well-settled presumption that a counsel conducting a case is competent, particularly where the counsel has been appointed by the choice of a litigant. 16. In the present case, the Petitioner approached this Court invoking its inherent jurisdiction at a stage when the matter has been reserved for judgment by the Trial Court. This implies that the entire trial proceedings, including the recoding of evidence, have been completed and the manner has been considered and concluded by the Trial Court, which has thereafter reserved its judgment. Permitting the Petitioner to seek recall of witnesses at this belated stage would cause undue delay in the administration of justice, notwithstanding the fact that the Petitioner had been ample opportunities to exercise his rights during the course of trial. 17. The provisions of Section 348 of BNSS/Section 311 of Cr.P.C. cannot be permitted to be misused by litigants with a view to derailing the proceedings or causing undue inconvenience to the opposite party, as such conduct would amount to a miscarriage of justice. A recall application which is not made at the appropriate stage and is sought at a belated juncture would, if entertained, lead to an interminable process, particularly where ample opportunity for examination of the witness had already been afforded over a prolonged period. Such a course would render the proceedings interminable and would be wholly vexatious and unproductive, thereby defeating the very object of expeditious administration of justice. III. C ONCLUSION 18. In view of the foregoing analysis, and upon an anxious and careful consideration of the material facts and circumstances of the case, this Court is of the considered opinion that the Petitioner is not entitled to recall the witness or adduce further evidence in the present proceedings. It is reiterated has already closed its case and the matter has been reserved for judgment, and such a stage does not permit invocation of inherent jurisdiction to override the statutory and constitutional scheme of criminal jurisdiction. Consequently, this Court finds no merit in the present CRLMC and is not inclined to accede to the relief prayed for. 19. Accordingly, the CRLMC stands dismissed. 20. Interim order, if any, passed earlier stands vacated.