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Madhya Pradesh High Court · body

2009 DIGILAW 62 (MP)

Karamat Ali v. State of M. P.

2009-01-12

S.S.DWIVEDI

body2009
ORDER 1. The applicant has filed this petition U/Sec. 482 of Cr. P. C. aggrieved by the order dated 13/8/2008; whereby the learned trial Court has directed for summoning of three witnesses namely Pradeep Kumar Sharma, the Manager of the State Bank of Indore and Investigating Officer Siraj Mohammed as per the provision U/Sec.311 of Cr.P.C. 2. Briefly stated the facts of the case are, the applicant is facing trial before JMFC, Indore in criminal case No.277/04 for the offence punishable U/Sec. 419, 420, 406, 409, 467, 468, 477 and 120-B of IPC, this case is pending since 1998. The learned trial Court has closed the evidence on 25/3/2008 and fixed the case for recording of the statement of accused. After recording of the statement of accused, the case is fixed for final arguments and thereafter for judgment on 13/8/2008. On this day, the learned trial Court after perusal of the evidence on record came to the conclusion that the statements of three material witnesses are necessary for just decision of the case, therefore, ordered for summoning of the aforesaid witnesses for their statements and fixed the case for recording of the statement of the aforesaid witnesses. Felling aggrieved by the aforesaid order, the applicant has preferred criminal revision before the Sessions Judge, Indore. The learned Sessions Judge by order dated 12/12/2008 after hearing the applicant, dismissed the revision. Aggrieved by which the applicant came up before this Court by this petition U/Sec.482 of Cr.P.C. 3. Having heard learned counsel for the applicant as well as Public Prosecutor for the State and perused the record. 4. It is submitted by the learned counsel for the applicant that admittedly the applicant is facing trial since 1998 and 10 years have already been passed. Having heard learned counsel for the applicant as well as Public Prosecutor for the State and perused the record. 4. It is submitted by the learned counsel for the applicant that admittedly the applicant is facing trial since 1998 and 10 years have already been passed. The trial Court itself at one point of time, came to the conclusion that sufficient time has been granted to the prosecution for production of the evidence and pleased to close the evidence of the prosecution on 25/312008, thereafter, the prosecution has also filed an application U/Sec. 311 of Cr.P.C. for production of two witnesses the Investigating Officer as well as Reader of the Collectorate office and that application has also been rejected by the trial Court by order dated 27/31 2008 and subsequently the final arguments had been heard and the case was fixed for judgment on 13/812008, but on that date the trial Court has again reviewed the earlier order passed by the same Court and came to the conclusion and directed for summoning of three witnesses by the impugned order under the provisions of 311 of Cr.P.C; which is apparently illegal and erroneous, therefore, prayed for setting aside of the impugned order passed by the trial Court. 5. Learned Public Prosecutor appearing on behalf of State supported the impugned order and submits that the trial Court cannot sit in the Court as a silent spectator and if the trial Court himself came to the conclusion that the statement of a particular witness is necessary for the just decision of the case, then the Court himself has got ample power under the provisions of Section 311 of Cr.P.C., to call any witness or recall any witness whose statement already been recorded in the trial by using the aforesaid power given U/S. 311 of Cr.P.C. The trial Court has not committed any illegality or irregularity which can be interfered with by this Court U/Sec. 482 of Cr.P.C, hence prayed for dismissal of the petition. 6. After consideration on the rival contentions of both the counsels and on persual of the impugned order, it is apparent that the trial Court has directed for summoning of witness Pradeep Kumar Sharma, Manager of the State Bank of Indore and the Investigating Officer Shiraj Mohammed to be summoned for their statement, and opined that their statements appeared to be material for the just decision of the case. 7. For to ascertain the legality of the impugned order it will be useful to quote the provision of Section 311 of Cr.P.C. which reads here as Under:- 311. " Power to summon material witness, or examine person present -- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, 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 it to be essential to the decision of the case." 8. As per the aforesaid provisions, the legislature has given ample power to the Court for summoning of any witness whose statement has not been recorded or whose statement has already been recorded for recall of his statement, but the main thing is that this power should be exercised by the Court for the just decision of the case only and not for the purpose of filling of the lacunae in the prosecution case. 9. By impugned order the trial Court himself came to the conclusion, after persual of the entire evidence on record that these witnesses are material, who can throw a light on the entire story of the prosecution then certainly in my considered opinion, the trial Court has not committed any illegality by ordering summoning of the aforesaid witnesses. And this cannot be presumed that the trial Court will sit only as silent spectator and if the prosecution fails to discharge his duty in a proper perspective then certainly the Court ought to have ordered for summoning of the material witnesses who had not been produced by the prosecution during trial. In view of that, the impugned order passed by the trial Court does not appear to be illegal or improper which can be interfered with by this Court, only a direction can be given that the trial Court shall try to conclude the trial at the earliest as the applicant is facing trial since last more than 10 years. 10. Resultantly, the petition filed by the applicant being devoid of any merit is dismissed, only with a direction that the trial Court will conclude the trial at the earliest.