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2006 DIGILAW 676 (MP)

RAMAYANA PRASAD PATHAK v. STATE OF M P

2006-05-09

MANJUSHA P.NAMJOSHI

body2006
Judgment ( 1. ) THE revision is under Section 397 read with Section 401, Code of criminal Procedure (hereinafter called cr. PC ). ( 2. ) BEING aggrieved by order dated 28-11-2005 passed in S. T. No. 81/02 by the Fourth Additional Sessions Judge (Fast Track), Sidhi, holding fresh trial, the accused applicant has preferred this revision before this Court. ( 3. ) ACCUSED along with other co-accused was arrayed in S. T. No. 81/2002. The accused absconded and hence his case was separated, evidence against other accused was recorded, case was decided and the co-accused were convicted under Sections 294-302, IPC. The Sessions Court separated the trial against the applicant and proceeded under Section 299, Cr. PC. ( 4. ) THE applicant subsequently appeared in the Sessions Trial. Now prosecution has filed an application under Section 311, Cr. PC for recalling the witnesses so that witnesses may be examined, cross-examined and discharged. The Trial Court allowed the application. The applicant accused has opposed this order of the Trial Court on the ground that there is no need to examine afresh the witnesses whose statements were already recorded in his absence. Thus, the main objection is that the prosecution cannot be allowed to recall the witnesses afresh to be examined as prosecution witnesses. ( 5. ) PARTIES heard. Record perused. ( 6. ) THE Trial Court was right in holding that as per provisions of section 273, Cr. PC the witnesses should be examined in the presence of the accused. Since the accused was absconding statements of witnesses were recorded under Section 299 of Cr. PC. The provisions of Section 299, Cr. PC are limited to the extent that the evidence of witnesses examined in absence of accused can be used against him on his appearance if deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case, would be unreasonable. ( 7. ) IN the case of Queen Empress Vs. Ishri Singh, ILR 8 All 672, facts were that the accused with other persons was charged with murder. He had absconded at the time of preliminary inquiry, and his associates were committed to the Sessions and convicted. ( 7. ) IN the case of Queen Empress Vs. Ishri Singh, ILR 8 All 672, facts were that the accused with other persons was charged with murder. He had absconded at the time of preliminary inquiry, and his associates were committed to the Sessions and convicted. It was held that the evidence given in the Sessions trial of the co-accused was not taken as evidence against the absconder and therefore it could not be used against him at his trial, as Section 33 of the evidence Act would not apply and as the prisoner was not a party to the proceedings and had no opportunity to cross-examine. ( 8. ) THUS, after the appearance of the accused fresh trial against him is to be commenced. Hence, the prosecution has every right to summon evidence and has also a right to examine the witnesses and accused has a right to cross examine. This right of the prosecution is not covered under Section 311 of the cr. PC. The provisions of Section 311 have no direct bearing on this case because no inquiry or trial was conducted against the absconding accused-applicant. Proceedings under Section 299, Cr. PC were initiated against him and as per that provision itself the prosecution had right to recall those witnesses who were examined as per that provision. Actually it is a right under Sections 230-231, cr. PC. Because prosecution has to commence the trial by way of adducing evidence against the accused Chapter XVIII, "trial Before a Court of sessions". In the Trial Court the prosecution had not made correct use of the sections while applying to the Court for summoning the evidence. But in substance the order of the Trial Court is justified as it is just and according to the law. ( 9. ) THE learned Counsel for the accused applicant has submitted three citations referring to Section 311, Cr. PC. These are : (1) Mir Mohd. Omar and others Vs. State of W. B. , AIR 1989 SC 1785 , (2) Keshav Choudhari and others vs. State of Bihar, 2000 Cri. LJ 3705 (Patna HC) and (3) P. Ramachandra Rao vs. State of Kamataka, AIR 2002 SC 1856 . The ratio of the first two cases is that after examination of the accused under Section 313, Cr. PC the prosecution moved an application under Section 311, Cr. LJ 3705 (Patna HC) and (3) P. Ramachandra Rao vs. State of Kamataka, AIR 2002 SC 1856 . The ratio of the first two cases is that after examination of the accused under Section 313, Cr. PC the prosecution moved an application under Section 311, Cr. PC for resummoning few witnesses for further examination. Prosecution at no stage prior to it moved the Trial court for recalling witness for further examination. The Supreme Court turned down the request. In the present case, the law laid down in these citations has no application. ( 10. ) IT is immaterial that the accused waves his right or gives latitude to the Court not to re-examine the prosecution witnesses already examined when he was absconding. It is the duty of the prosecution to examine afresh the prosecution witnesses whose evidence is necessary in the case. This is of course subject to the provisions of Section 299 (1), Cr. PC. The law does not permit and gives discretion to the accused in such matter. ( 11. ) IN the result the revision fails and is accordingly dismissed. Parties shall appear before the Trial Court on 17th May, 2006 for further directions from the Trial Court. Criminal Revision dismissed.