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Madhya Pradesh High Court · body

2000 DIGILAW 288 (MP)

Mubarique Shah v. State of M. P.

2000-03-23

A.K.GOHIL

body2000
Short Note The applicants have filed this Criminal Revision under section 397 of the Code of Criminal Procedure against the order passed by First Additional Sessions Judge, Dewas on 26.2.2000 in Sessions Trial No. 172/97. The submission of Shri Jain is that on 26.2.2000 the case was fixed for defence witnesses but the witnesses were not present. He filed an application under section 311 of the Code of Criminal Procedure for re-calling the prosecution witnesses, namely PW-1 Mangilal, PW 3 Babulal and PW 8 Shivajiram on the ground that material contradictions and omissions could not be recorded. Therefore, for just and fair decision of the trial, his application be allowed. After hearing the parties the learned Court below rejected the said application on the ground that the case is pending since 1997; the statements of PW 1 and PW 3 were recorded on 6.4.1998 and the statement of PW 8 was recorded on 6.3.1999 and for that a long period has elapsed, full opportunity was provided to the counsel for the applicants for effective cross-examination. The applicants have filed this application on the last date when their defence witnesses were not present. The further submission of Shri Jain is that under the provisions of section 311 of the Code of Criminal Procedure, the Court has wide powers to recall the witnesses at any stage of enquiry. He relied on the decision of Dinesh S/o Sunderlal v. State of Madhya Pradesh, reported in 1991 (I) MPWN 14 = 1991 MPLJ 431 , in which the application for recalling the eye-witnesses was allowed on the ground that some valuable information received by the accused was made in the said application and it was in that context the application was allowed. But here in this case the applicants want to recall and re cross-examine the prosecution witnesses only on the ground that they could not ask some material questions from those witnesses. Failure of putting any question during the cross-examination does not mean that proper opportunity to cross-examination was not given-and cannot be a ground to recall the witnesses which obviously will amount to filling up the lacuna. No doubt the Court has unbridled power to resuming the witness before the conclusion of the trial but that discretion has to be exercised on sound judicial discretion. No doubt the Court has unbridled power to resuming the witness before the conclusion of the trial but that discretion has to be exercised on sound judicial discretion. Re-calling and re-examination of witness cannot be allowed to fill up the lacuna even in the defence evidence. In this case no ground to the surprise of the defence is made out for purposes of recalling the witnesses, The sessions trial is pending since 1997. The application was filed on the last date of hearing when the defence witnesses were not present. Therefore, in such circumstances it would not be proper to exercise discretion and to recall witnesses. The Court below was justified in rejecting the application. There is no illegality in the order passed by the Court below. In the result, I do not see any illegality in the impugned order and, therefore, needs no interference and accordingly the revision is dismissed.