Orissa HC Sets Aside Special Court's Refusal to Summon Surrendered Maoist as Witness in BSF Ambush Trial
The Orissa High Court held that a witness's status as a surrendered Maoist cannot justify refusing to summon him under Section 311 CrPC, when his name was already in the charge-sheet.
The Orissa High Court, at Cuttack, has set aside a December 2025 order of the NIA Special Court at Bhubaneswar that refused to summon a surrendered Maoist, Nobisa Sirka @ Azad, as a prosecution witness in the trial arising from a deadly 2012 landmine ambush on BSF personnel. Dr. Justice Sanjeeb K Panigrahi, sitting singly, held that the witness's background as a surrendered Maoist is not, by itself, a legally valid ground to decline summoning him under Section 311 of the Code of Criminal Procedure, particularly when his name had been cited in the charge-sheet from the outset. The ruling reaffirms that the evidentiary worth of a witness's testimony is a matter for the trial court to assess at the stage of final adjudication — not a threshold to be applied when considering a summoning application.
The 2012 Landmine Attack and the NIA Case
The prosecution case traces back to 10 February 2012, when accused persons alleged to be members of the Communist Party of India (Maoist) — a proscribed terrorist organisation — carried out a pre-planned landmine blast targeting a Bolero vehicle bearing Registration No. GJ-18-G/2041, which was occupied by BSF personnel.
The blast was followed by indiscriminate firing and grenade lobbing. Four BSF officers died: Commandant J.R. Khaswan of 107 Bn. BSF, 2-I/C Rajesh Saran, Inspector Ashok Yadav, and ASI (RM) Jitendra Kumar. Other occupants sustained injuries. The prosecution further alleged that arms, ammunition, and other belongings of the deceased were looted after the attack.
Chitrakonda P.S. Case No. 07 of 2012 was registered for offences under Sections 147, 148, 121, 121-A, 122, 124, 324, 302, 395 and 149 of the IPC, Sections 25 and 27 of the Arms Act, and Sections 3, 4 and 5 of the Explosive Substances Act. Pursuant to Order No. F.11011/28/2012-IS-IV dated 1 June 2012 issued by the Ministry of Home Affairs, the NIA re-registered the matter as RC No. 02/2012/NIA/DLI and took over the investigation.
Arrest, Recovery, and the Charge-Sheet
The accused before the Special Court, Gameli Chinna Rao, was arrested by the Odisha Police on 7 May 2013. On search, a 9 mm Browning pistol (Belgium-made) bearing Body No. 245PX24364, a magazine, 16 rounds of 9 mm ball ammunition, Maoist literature, a micro SD memory card, two pen drives, five gelatin sticks, nine detonators, cash of Rs. 64,630/-, approximately three kilograms of ammonium nitrate, and several other articles were allegedly recovered from his possession.
Investigation revealed that the recovered pistol was the same weapon looted during the ambush and originally issued to Late Commandant J.R. Khaswan. The prosecution argued that this recovery connected the accused to the incident and the larger conspiracy behind it.
A charge-sheet was filed on 9 May 2014, naming 54 witnesses across the charge-sheet and a supplementary charge-sheet filed on 6 August 2015 against fifteen additional accused. The accused could be produced before the Special Court only on 24 August 2017 because he was lodged in Rayagada Jail in connection with other criminal cases.
Since other accused persons were either absconding or in custody in separate cases and could not be produced, the case against Gameli Chinna Rao was split up. Charges were framed against him on 10 July 2019 under Sections 147, 148, 121/149, 121-A/149, 122/149, 124-A/149, 324/149, 326/149, 307/149, 302/149, 395/149 and 412 of the IPC, Sections 25 and 27 of the Arms Act, Sections 3, 4 and 5 of the Explosive Substances Act, Sections 16 and 17 of the Criminal Law Amendment Act, and Section 16 of the Unlawful Activities (Prevention) Act, 1967.
A Slow Trial and the Contested Application
Examination of prosecution witnesses began on 19 August 2019. By 17 February 2020, five witnesses had been examined. The court then contended with the COVID-19 pandemic, which significantly disrupted proceedings from February 2020 onwards, with regular functioning resuming only towards the latter part of 2022. By the end of 2024, most prosecution witnesses, including police officers associated with the investigation, had been examined.
One prosecution witness, P.K. Bisoyi, a person with physical disability, was present on 21 October 2024 but could not be examined because a technical glitch prevented the accused's production via video conferencing. The witness subsequently suffered a paralytic stroke, and his evidence was ultimately recorded on commission on 10 October 2025.
On 8 December 2025, the prosecution filed an application seeking summons for four witnesses cited at Sl. Nos. 31, 33, 35 and 36 of the charge-sheet. Nobisa Sirka @ Azad, a surrendered Maoist listed at Sl. No. 31, had been examined during investigation and cited as a witness because his statement was found relevant to unfolding the alleged conspiracy, establishing link evidence, and proving the operational activities of the accused. The prosecution candidly stated that his non-examination during trial was due to inadvertence.
By order dated 12 December 2025, the Special Court allowed the prayer in part, directing summons to three of the four witnesses. The prayer concerning Nobisa Sirka was rejected, primarily on the ground that he was a surrendered Maoist.
The Legal Controversy: Section 311 CrPC and Its Scope
Before the High Court, the NIA's Special Public Prosecutor Mr. Santosh Kumar Mund argued that the Special Court failed to appreciate that once a person is cited as a prosecution witness in a charge-sheet, the prosecution has a legitimate right to examine that witness unless the court finds strong reasons to the contrary. He contended that the impugned order reflected non-application of mind.
Reliance was placed on Varsha Garg v. State of Madhya Pradesh, (2023) 19 SCC 646, where the Supreme Court held that the power under Section 311 CrPC is not constrained by the closure of evidence and must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The NIA also relied on V.N. Patil v. K. Niranjan Kumar & Others, (2021) 3 SCC 661, for the proposition that the determinative factor under Section 311 is whether the evidence is essential to a just decision, though such power must be exercised judiciously. Swapan Kumar Chatterjee v. Central Bureau of Investigation, (2019) 14 SCC 328, was cited for the principle that the power is meant to advance the cause of justice and discover truth, but must be exercised for strong and valid reasons with caution.
Counsel for the accused, Mr. Prasanta Kumar Jena, countered that Nobisa Sirka's evidence, as a surrendered Maoist, would not assist the prosecution and was not worthy of reliance. He further submitted that the accused had been in custody for a considerable period, that directions had been issued for expeditious disposal, and that the application was designed only to prolong the trial.
How the High Court Reasoned
Dr. Justice Panigrahi began by situating the scope of Section 311 CrPC. The provision confers wide powers on the court to summon any person as a witness, or to examine, recall, or re-examine any person already examined, if such evidence appears essential to the just decision of the case. The object is to ensure all relevant and material evidence necessary for arriving at the truth is brought before the court, so that no failure of justice occurs on account of any omission by either party.
The court drew on the Supreme Court's analysis in Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, noting that the power is not limited to benefiting the accused alone and that it would not be improper to summon a witness merely because the evidence supports the prosecution. The expression “at any stage of any inquiry or trial or other proceeding under this Code” in Section 311 was highlighted as conferring a very wide power, though one requiring judicial application of mind.
Turning to the impugned order, the court found a critical gap: the Special Court had given no finding that the proposed evidence of Nobisa Sirka was irrelevant, unnecessary for a just decision, or intended to fill up lacunae in the prosecution case. The sole ground for refusal was that the witness was a surrendered Maoist.
The court held this to be legally insufficient. Evidentiary value is assessed after a witness is examined and subjected to cross-examination — not at the stage of considering whether to summon him at all. At the Section 311 stage, the court's concern is the relevance of the proposed evidence, not its ultimate worth.
The court also addressed the lateness of the application. It pointed out that Nobisa Sirka was not a new witness being introduced at a belated stage. He had been cited in the charge-sheet itself. There was nothing before the High Court to suggest the prosecution was seeking to alter the nature of its case or introduce altogether new material through his examination. The prosecution's explanation of inadvertence for his earlier non-examination was uncontradicted.
In the absence of any cogent reason in the impugned order for declining the prayer, the High Court found no justification to sustain it.
Order
The High Court set aside the order dated 12 December 2025 insofar as it rejected the prayer for summoning charge-sheet witness No. 31, Nobisa Sirka @ Azad. The Special Court was directed to take appropriate steps to secure his attendance and proceed in accordance with law.
The court expressly clarified that it had expressed no opinion on the merits of the testimony of Nobisa Sirka or on the merits of the prosecution case as a whole. All questions relating to the evidentiary value of his testimony are to be determined independently by the trial court at the appropriate stage.
The Criminal Miscellaneous Petition, CRLMC No. 728 of 2026, was allowed to the extent indicated. Any interim order passed earlier was vacated.