STATE OF ORISSA versus PRASANNA KUMAR MOHANTY

Citation: [2009] 5 S.C.R. 843 · Decided: 09-04-2009 · Supreme Court of India · Bench: S.B. SINHA, MUKUNDAKAM SHARMA · Disposal: Disposed off

Judgment (excerpt)

T2009] 5 S.C.R. 843 
STATE OF ORISSA 
v. 
PRASANNA KUMAR MOHANTY 
(Criminal Appeal No. 704 of 2009) 
APRIL 9, 2009 
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] 
EVIDENCE ACT, 1872: 
A 
B 
s. 33 - Relevance of examination-in-chief of a witness if c 
he was not available for cross-examination - HELD: Despite 
the fact that two opportunities were granted to defence to cross-
examine the witness, he was recalled for' cross-examination 
- Further, for a long period he did not ma~e himself available 
for his cross-examination - Therefore, s.33 is not applicable 0 
to facts of the case - However, if the said witness is not 
capable of giving evidence by appearing in court, prosecution 
may file an application for his cross-examination through a 
Commissioner who would consider as to whether the witness 
is capable of deposing before him - Order is passed in E 
exercise of jurisdiction under Article 142 of the Constitution, 
as such, it will not be construed as a precedent- Constitution 
of/ndia, 1950 - Article 142. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 704 of 2009. 
F 
From the Judgment & Order dated 20.4.2007 of the High 
Court of Orissa at Cutack in Criminal Misc. No. 552 of 2007. 
Radha Shaym Jena and Siddharth Panda for the 
Appellant. 
G 
Shibashish Misra for the Respondents. 
The following Order of the Court was delivered: 
M3 
H 
844 
SUPREME COURT REPORTS - [2009] 5 S.C.R. 
A 
ORDER 
Delay condoned. 
Leave granted_ 
B 
We have heard learned counsel for the parties. 
The prosecution against the respondent herein was 
initiated in the year 1987. The Investigating Officer Bipin Behari 
Mahapatra was examination-in-Chief on 1.9.1999. 
C Unfortunately, on that date he could not be cross examined as 
respondent herein had filed two Criminal Miscellaneous 
Applications before the High Court although the learned Special 
Judge proceeded on the basis that the cross examination would 
be treated to have been declined. He was also present in Court 
on 15.1.2003 and 7.8.2003. By an Order dated 7.8.2003, 
D however, on an application filed by the defence, the said Bipin 
Behari Mahapatra was recalled for cross examination. The 
matter was adjourned to 12.9.2003 on which date he was 
directed to remain present. 
E 
It, however, appears that although the matter for further 
hearing was fixed from 12.9.2003 till 18.8.2006 no prosecution 
witness including the said investigating officer was present in 
the Court. The learned Special Judge went on issuing 
summons for his appearance so that he could be cross 
F examined by the defence. Only on 18.8.2006, the learned 
Court's attention was drawn on an endorsement to the 
summons that he would not be able to attend the Court due to 
his illness. On and about 8.1.2007, an application was filed by 
the special Public Prosecutor to exonerate Mr. Mahapatra from 
G cross examination on the ground of his illness. By reason of 
his order dated 24.3.2007 the learned Special Judge, however, 
directed as under :-
"From the aforesaid circumstances, it is thus seen that the 
defence did not take steps for cross-examination of P.W.9 on 
H 
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STATE OF ORISSA v. PRASANNA KUMAR MOHANTY 
845 
closure of this evidence in Chief on 10.9.1999. Vigilance took A 
adjournment to procure attendance of P.W.9 on the ground of 
his illness and ultimately report is received that P.W.9 being 
aged 75 years due to prolong illness is not in a position to move 
and understand things having lost memory. No doubt it js 
necessary to cross examine the witness to assess his veracity B 
and without cross examine the defence looses his valuable 
rights. But in the present case when P.W.9 due to old age and 
prolonged illness has lost his memory and unable to understand 
things no fruitful purpose would be served to insist for his 
attendance or to depute commission for his cross-examination c 
in a case of this nature. Hence it is needless to insist upon the 
attendance of P.W.9 for his cross examination. However, the 
veracity of his evidence in chief shall be assessed with 
reference to other materials on record during final argument of 
the case. Accordingly, the petition filed on behalf of Special 0 
P.P. Vigilance is disposed of." 
The respondent filed an application under Section 482 of 
the Criminal Procedure Code there against before the High 
Court. The High Court, while relying upon a decision of this 
Court in Gopa/ Saran vs. Satyanarayan reported in 1989 (3) E 
sec 56 held as under :-
"In view 

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