Allowed

Rabindra Sethi v. State of Odisha

Orissa HC3 Feb 2023CRLMC/116/2023

Case brief

AI extract

What is this about?

The High Court allowed a quashing petition under Section 482 Cr.P.C. setting aside an order that directed the petitioner to deposit Rs.7000/- towards witness expenses for cross-examination, holding it unsustainable in law and contrary to established precedent requiring the State to bear such costs.

What did the court decide?

The impugned order directing the petitioner to deposit Rs.7000/- to bear witness expenses is set aside, and CRLMC No.116 of 2023 is allowed.

Rabindra Sethi Vs State of Odisha — Civil Procedure and Limitation | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No.116 of 2023

Rabindra Sethi

…. Petitioner

Mr. Sk. Zafarulla, Advocate

-Versus-

State of Odisha

…. Opposite Party

Mr. S.S. Mohapatra, ASC

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CORAM:

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MR. JUSTICE R.K. PATTANAIK

Order

No. 01.

ORDER 03.02.2023

Heard learned counsel for the petitioner and learned counsel for the opposite party State.

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Instant petition under Section 482 Cr.P.C. is filed challenging the impugned order dated 19^th October, 2022 passed in G.R. Case No.911 of 2022 by the learned J.M.F.C., Panposh, Rourkela to the extent directing the petitioner to deposit a cost of Rs.7000/- while allowing an application Section 311 Cr.P.C for recall and cross-examination of a witness, namely, P.W.5 on the ground that same is unjustified and not according to law.

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A copy of the application under Section 311 Cr.P.C. is at Anenxure-1.

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Annexure-2 is a copy of the impugned order dated 19^th October, 2022.

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Mr. Zafarulla, learned counsel for the petitioner submits that though application under Section 311 Cr.P.C. was moved by the

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petitioner for seeking recall and cross-examination of P.W.5 and was allowed but with a cost of Rs.7000/-to be deposited towards the expenses to be borne by the said witness. Mr. Zafarulla cites a decision of this Court in Rathia Behera and Another Vrs. State of Odisha 93(2003) CLT 184 while challenging the cost imposed by the learned court below and also refers to Rule 3(a)(ii) of the Orissa Criminal Court Witnesses (payment of Expenses) Rules, 1963 (in short ‘the Rules’) to contend that any such expense of a witness is necessarily borne by the State and hence, directing the petitioner to pay and deposit the cost amount is not sustainable in law and to that extent impugned order under Annexure-2 is liable to be set aside.

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Mr. Mishra, learned counsel for the State submits that the impugned order under Annexure-2 is not justified for the reason that P.W.5 was present on the date of examination but it could not be accomplished due to default of the petitioner and hence, when a recall was applied for, the learned court below rightly imposed the cost which, therefore, should not be interfered with.

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The Court does not find any reason to impose such a huge cost of Rs.7000/- while allowing cross-examination of P.W.5 at the instance of the petitioner notwithstanding the fact that on the previous date the cross-examination could not be ensured and assuming it to be on account of default of the petitioner. In the decision of this Court in Rathia Behera (supra), it has been held that accused facing trial for non-bailable offences should not be directed to deposit expenses of witnesses since it is the court to make payment with reference to Rule 3(a)(ii) of the Rules. A copy of the said Rules is submitted by Mr. Zafarulla. The Court also does not find any reason or justification for the learned court below to

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impose the cost for an amount of Rs.7000/- which is again on the higher side. In any view of the matter, since recall and crossexamination was allowed and it was suggested to bear the expenses, unless a case is made out of default of gross nature, the Court is of the humble opinion that it was not right and justified for directing the petitioner to deposit such a sum of Rs.7000/- In other words, the Court is of the view that the impugned order under Annexure-2 is liable to be set aside to the aforesaid extent.

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8. Accordingly, it is ordered.

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In the result, CRLMC stands allowed. Consequently, the impugned order dated 19^th October, 2022 passed in connection with G.R. Case No.911 of 2022 by the learned J.M.F.C., Panposh, Rourkela is hereby set aside the extent, as above.

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A certified copy of this order be granted as per rules.
(R.K. Pattanaik)
Judge
Tudu

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Rabindra Sethi v. State of Odisha

Case brief

What is this about?

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Rabindra Sethi v. State of Odisha

Case brief

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