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Madhya Pradesh High Court · body

2007 DIGILAW 557 (MP)

Arun v. State of M. P.

2007-05-10

S.C.VYAS

body2007
ORDER 1. With the consent of the parties the matter is heard finally. This is a petition filed under section 482 of Criminal Procedure Code, for quashment of the order dated 1.9.2006 passed by Additional Sessions Judge, Khachord in ST No. 28812003, whereby an application filed by prosecution under section 311 of the Criminal Procedure Code was allowed and recalling of prosecution witness was permitted. This order of recalling of prosecution witness is impugned in this petition. 2. It appears that one Hitesh was examined as PW 7 during trial of case bearing ST No. 28812003. At that time he was declared hostile as he had not supported the case of prosecution and was confronted with his earlier statement recorded under section 161 of Criminal Procedure Code by the prosecutor. Later on while the same witness was in jail then he sent an application on 5.8.2006, wherein it has been stated that earlier he gave the statement because the accused persons of the case were also with him in the same jail and were continuously threatening him and were saying that if he gives his statement against them then his all family members would be killed, in this situation earlier he had not supported the case of the prosecution. It has also been stated in that application that now he again wants to give statement in the case so that real facts can come before the Court. With this prayer that application was forwarded by the Jailer to the concerning Court, then application under section 311 of the Criminal Procedure Code was also moved by the prosecutor, which was allowed. 3. Learned counsel for the petitioners submitted that the witness who was examined once by the prosecution and was cross-examined and discharged should not be permitted for any further examination in the garb of section 311 of the Criminal Procedure Code. It has also been argued that if certain questions have not been put to the witness or if earlier he stated something which he feels to be false, then such witness should be prosecuted and should not be permitted to again give his statement. It has further been argued that because the witness has already given full statement at the time of his earlier examination so, his reexamination would be simply an abuse of process of the Court. It has further been argued that because the witness has already given full statement at the time of his earlier examination so, his reexamination would be simply an abuse of process of the Court. Learned counsel placed reliance on a reported judgment of Supreme Court delivered in the case of Mishrilal and others v. State of M.P and others [2005 (2) Vidhi Bhasvar 147 = 2005 (IV) MPHT 286] and submitted that in that case Supreme Court disapproved the order of recalling the witness who was earlier examined. 4. Per contra, learned public prosecutor and learned counsel who appeared for other respondents submitted that earlier witness was under pressure of the accused persons and could not disclose true facts. Now his conscious is back to tell truth before the Court, that is why he has sent such application from the jail itself. If has further argued that the powers under section 311 of Criminal Procedure Code are discretionary powers of the Court and under such powers the Court can order looking to facts of the case to recall any witness who was earlier examined by the trial Court. It has also been argued that trial Court has correctly relied on the judgment of Supreme Court in the case of Jaheera Habibulla Sheikh and others v. State of Gujarat and others [ (2004) 4 SCC 158 ] and, therefore, there is no scope of interference in the order passed by trial Court. 5. I have considered the rival contentions raised by both the parties. I have also gone through the impugned order passed by trial Court. It appears that witness Hitesh who was earlier examined had not supported the case of prosecution during his examination. It also appears that he is the person who in fact lodged the FIR and was an eye witness of the incident, as per the contents of the FIR. But when he examined earlier, then he had denied all these facts. Now he wanted that he be examined again. Prosecution is also praying for the same learned trial Court is also of the view that the witness should be re-examined and I do not find any error in such view of learned trial Court. 6. But when he examined earlier, then he had denied all these facts. Now he wanted that he be examined again. Prosecution is also praying for the same learned trial Court is also of the view that the witness should be re-examined and I do not find any error in such view of learned trial Court. 6. The powers under section 311 of the Criminal Procedure Code, for calling or recalling any persons to give his statement in pending case are very wide and can always be exercised in the interest of justice by the trial Court after having due consideration of the facts of the case and on the circumstances under which such necessity of recalling is felt. Such power is totally discretionary power and only requirement is that such discretionary power should be exercised judicially. 7. The impugned order shows that learned trial Court has considered all aspects of the matter and then ordered for recalling the witness. There does not appear any perversity in the order passed by the trial Court. If a witness wants to give another statement might be contrary to the earlier statement, then if such witness was earlier under some threat or coercion had not supported the case of prosecution, wants to support now, then there is no reason for disallowing such prayer and not permitting him to tell the truth before the Court. Out of different statements given by some witness which statement can be relied on, is a question to be adjudicated by the trial Court itself, at the time of final disposal of the case. Without providing any opportunity of giving statement before the Court, and refusing the prayer for examination only on the ground that he had been examined once and now he cannot be permitted to say anything more would be against the interest of justice in the facts of the present case. There may be many circumstances which may justify recalling a witness for giving further statement for example some new facts may also emerge, or a person who might have lost memory earlier may regain memory and may be in position to say something concerning the matter etc. These are only the examples, and Courts may come across any situation which may justify recalling a witness. These are only the examples, and Courts may come across any situation which may justify recalling a witness. The judicial discretion available to the Court under section 311 of Criminal Procedure Code is to be exercised very carefully and in case, facts of which justify such exercises of discretionary powers. Therefore, it cannot be held as a general rule that in no circumstance a witness can be permitted to give his statement again. It is always up to the judicial discretion of the trial Court to consider such type of prayer in its right perspective and then to decide as to whether in the facts of the case it would be in the interest of justice or not to permit recalling the witness. 8. In the facts of the case, I do not find any error in the order passed by learned trial Court. The petition does not have any merits. Therefore, the petition is dismissed.