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Madhya Pradesh High Court · body

2006 DIGILAW 356 (MP)

Santosh Khare v. State of M. P.

2006-03-08

A.P.SHRIVASTAVA

body2006
ORDER 1. In compliance of the order of this Court, copy of petition filed before the lower Court under section 311 CrPC has been filed. Heard on admission. Admitted for final hearing and also heard finally. 2. This revision is directed against the order of the JMFC (Smt. Ashita Shrivastava), Gwalior in Criminal Case No. 909/99 whereby the trial Court rejected the application under section 311 CrPC of the petitioner. 3. It is submitted on behalf of the petitioner that the cross-examination of Amit Sharma (PW 5) could not be carried out effectively as on that date his junior counsel appeared in the Court. It is also submitted that he is an eye witness and material witness of the prosecution, therefore, an opportunity may be given for further cross-examination as requested by the petitioner. The trial Court rejected the petition on the ground that the opportunity has already been accorded to counsel for cross-examining the witness and listed the case for final arguments. It is admitted by the petitioner's counsel that the aforesaid witness was examined in Court on 22.7.2004 and application for recalling the witness was filed on 25.1.2006. For delay it is submitted that at the time of final argument, the mistake has been noticed by him. On the side of the respondents, the order of the trial Court is supported. Under section 311 wide power has been given to the trial Court. At any stage of an enquiry, trial or other proceeding summon any person as a witness or examine any person, though not summoned as a witness or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. It is evident from the provision of section 311 wide power is given to the Court to call any witness whether it is essential for the just decision of the case, although it is the duty of the counsel to make proper arrangement if senior is busy elsewhere. But looking to the circumstances and interest of justice, I think in the impugned order interference is needed. The trial Court ha not exercised jurisdiction properly, therefore the impugned order is se aside. But looking to the circumstances and interest of justice, I think in the impugned order interference is needed. The trial Court ha not exercised jurisdiction properly, therefore the impugned order is se aside. It is directed that the trial Court shall fix a date for re-examination of witness within a week after communication of this order and only on chance for re-examination should be given and then proceed the trial according to law. Revision petition is allowed accordingly.