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Madhya Pradesh High Court · body

2011 DIGILAW 1281 (MP)

Mohar Singh v. State of M. P.

2011-11-11

G.D.SAXENA

body2011
JUDGMENT (1) This revision under Section 397/401 of the Code of Criminal Procedure, 1973 preferred by the petitioner/accused is directed against an order dated 21st October, 2011 in Sessions Case No. 315/01 by the Third Additional Sessions Judge Morena (M.P.), rejecting thereby an application filed under section 233 of Cr.P.C. by the accused for re-calling Jai Singh Sikarwar (PW-3) as defence witness in the said Sessions trial. (2) The brief facts, just for the decision of this case are that in Sessions Case No. 315/ 01 pending before the Third Additional Sessions Judge, Morena against petitioner/accused for commission of offence punishable under Section 304-B of I.P.C. for causing dowry death of Smt. Suman and/or alternatively for commission of offence punishable under Section 302 of I.P.C. for causing murder of Smt. Suman. During trial of the said case, Jai Singh Sikarwar (PW-3), father of the deceased and Smt. Shashi Sikarwar (PW- 6), mother of the deceased were examined as prosecution witnesses by the trial Judge. During the course of trial, the accused filed the affidavits of aforesaid two witnesses Jai Singh Sikarwar and Smt. Shashi Sikarwar sworn in favour of the accused. It is further mentioned that under pressure of police authorities the witnesses made the statements against the in-laws of her deceased-daughter. Now, they intend to place the true facts on record before the trial Judge. Thereafter, at defence stage, the accused/petitioner filed the application under Section 233 of Cr.P.C. for summoning Jai Singh (PW-3) as defence witness. The said application was rejected by the trial Judge under the impugned order, hence, this revision. The contention of the learned counsel appearing for the petitioner is that the impugned order of the trial Judge is neither legal nor proper and without assigning cogent reason, the application of the accused was rejected. It is submitted that the witnesses who filed their affidavits before the trial Judge are material for proving the defence of the accused and without examining them the defence of the accused will be adversely affected. In support of his submissions, he placed reliance on the decisions in the cases of Harbhajan v. State of M.P. ( 1989 JLJ 217 ) and Heeralal v. State of M.P. (1998 Cr LJ 2585). In support of his submissions, he placed reliance on the decisions in the cases of Harbhajan v. State of M.P. ( 1989 JLJ 217 ) and Heeralal v. State of M.P. (1998 Cr LJ 2585). Accordingly, it is prayed that by allowing the revision petition, the learned trial court be directed to allow his application under Section 233 of Cr.P.C. and summon witness Jai Singh Sikarwar (PW-3), who was examined previously as prosecution witness, as defence witness and his statement be recorded. (3) The learned Public Prosecutor for the respondent/State on the other hand, opposed the prayer and requested to dismiss the revision. (4) Heard the learned counsel for the parties and also perused the documents on record and the law applicable to the present case. The question comes as to what is the scope of Section 233 of Cr.P.C. A bare perusal of sub-section (3) of Section 233 would reveal that when accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It can thus be clearly seen that when an accused exercises his right under sub-section (3) of Section 233 for compelling the attendance of any witness or production of any document, the learned Judge can refuse the said request only on three grounds : (i) vexation, (ii) delay, and (iii) defeating the ends of justice. Moreover, the Judge is required to record his reasons for refusing the request. A bare perusal of the said section would reveal that except those three grounds, the request cannot be turned down on any other ground. (5) It is not disputed that Jai Singh Sikarwar (PW-3) and Smt. Shashi Sikarwar (PW-6) earlier were examined as prosecution witnesses and they supported the prosecution version. It is also admitted that at later stage of trial, the accused by filing the application under Section 311 of Cr.P.C. made a payer before the trial court for summoning the above witnesses for cross examining them in the light of the affidavits sworn in favour of the accused and the same were filed along with the application. It is also admitted that at later stage of trial, the accused by filing the application under Section 311 of Cr.P.C. made a payer before the trial court for summoning the above witnesses for cross examining them in the light of the affidavits sworn in favour of the accused and the same were filed along with the application. Said application was rejected by the trial Judge by an order dated 2nd September, 2011. It is also true that against the order of rejection dated 2nd September, 2011, the petitioner moved this court by way of Criminal Revision No. 785/2011, which was dismissed vide order dated 14/ 10/11 in terms of following directions: "Consequently there is no illegality appears in rejecting his application by the trial Judge. However the petitioner shall be at liberty to adopt the legal resources available to him in accordance with law." (6) The petitioner thereafter at defence stage moved the application under Section 233 of Cr.P.C. for summoning the witnesses as aforesaid which prayer was rejected by the trial Judge under the impugned order. The decisions cited by the learned counsel for the petitioner are now being taken into consideration. In the case of Harbhajan (supra), our High Court has observed:- "Under Section 233 of the Code of Criminal Procedure, 1973 when called upon to enter on his defence the accused is entitled to apply for issue of process compelling attendance of witness and the Court is bound to issue such process unless for reasons to be recorded the court may find the application to be vexatious or designed to delay or defeat the ends of justice. The trial Court rightly permitted the recall of the two witnesses because it was necessary to do so in the ends of justice. The only error in which it fell, witting or unwittingly was to have recorded the statements at two places. It should have inserted a note on earlier depositions of these witnesses and resumed examination,cross- examination etc. in continuation of the original deposition. (7) In the case of Heeralal (1998 Cri LJ 2585) (MP) (supra), it is observed as under: "It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. in continuation of the original deposition. (7) In the case of Heeralal (1998 Cri LJ 2585) (MP) (supra), it is observed as under: "It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. It is the duty of the Court not only to do justice but also to ensure that justice is being done. In order to enable a Court to find out the truth and render a just decision the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute, because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." (8) On contrary, the Hon. Apex Court in the case of State of M.P. v. Badri Yadav ( AIR 2006 SC 1769 ): (2006 Cri LJ 2128), held in para 13: "Sub-section (3) of Section 233 reads : (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." (Emphasis supplied) Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311, Cr. P.C. was already rejected. The application for recalling and re-examining persons already examined, as provided under Section 311, Cr. P.C. was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233, Cr. P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of subsection (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by sub-section (3) of Section 233, Cr.P.C. (Para 14). When such frivolous and vexatious petitions are filed, a Judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eye-witnesses on 18- 12-1990, cross-examined and discharged. Thereafter, an application under Section 311, Cr.P.C. was rejected. They were recalled purportedly in exercise of power under sub-section (3) of Section 233, Cr. P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17-7-1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law. (Para 15) A reference was further made by the Apex Court in para 16 to the case of Yakub Ismail Bhai Patel v. State of Gujarat, (2004) 12 SCC 229 : ( AIR 2004 SC 4209 : 2004 Cri LJ 4205) and quoted the observations :- "In the case of Yakub Ismail Bhai Patel v. State of Gujarat, (2004) 12 SCC 229 : ( AIR 2004 SC 4209 : 2004 Cri LJ 4205), in which one of us Dr. AR. AR. Lakshmanan, J. was the author of the judgment, in somewhat similar case to the facts of the present case it was held that once a witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in court on oath by filing affidavit stating that whatever he had deposed before court as PW was not true and was done so at the instance of the police. In that case the evidence of PW-1 was relied upon by the Trial Court and also by the High Court. He was examined by the prosecution as an eyewitness. He also identified the appellants and the co-accused in the Court. After a long lapse of time he filed an affidavit stating that whatever he had stated before the Court was not true and had done so at the instance of the police. In those facts and circumstances this Court in paragraphs 38 and 39 at SCC pp. 240-241 held as under :- "38. Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW-1 was not true and it was so done at the instance of the police. 39. xxxxx xxxxx xxxxx xxxxx xxxxx (9) Recently, in the case of C. Mangesh v. State of Karnataka ( AIR 2010 SC 2768 ) it is held:- "It would be apt to mention herein that interlocutory applications were filed by some of the accused in the trial court under Sections 91 and 233 of the Cr.P.C. As per Section 233, the trial court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. The trial court had considered the judgment of the High Court of Karnataka in Cr. Rev. Petition No. 677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led without summoning of any documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that trial court has committed no error in rejecting the above applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications. Thus, we are of the opinion that trial court has committed no error in rejecting the above applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications. (10) Considering the facts of the case, submissions made by the learned counsel for the petitioner, learned Public Prosecutor for the State and from perusal of the documents on record including the impugned order dated 21/10/11, it appears that the petitioner is accused in the present case and being accused he has legal right to adduce evidence in defence but for the purpose of issuance of process compelling the attendance of any witness or to produce the documents, learned trial court has to be satisfied that the issuance of process is not for the purpose of vexation or delay or for defeating the ends of justice. As discussed above, the application for summoning said witness Jai Singh (PW-3) has been moved by the petitioner for the purpose of delaying the proceedings, as the learned trial court has mentioned in its order that the same was moved after completion of cross-examination of the said witness Jai Singh (PW-3) on 21/10/02 and therefore in such circumstances, the evidence of said witness will not serve any purpose for the just decision of the case because it will not be helpful for the prosecution as well as to the defence. A perusal of the impugned order would further reveal that while refusing request of the petitioner, the learned trial court has referred to all of the three grounds as contemplated under Section 233 of Cr.P.C. Thus, in the light of the law laid down by the Apex Court in the cases of C. Mangesh (supra) Yakub Ismail Bhai Patel and State of M. P. (supra) in the opinion of this court, the trial court has not committed any illegality in rejecting the application preferred by the accused. There is no illegality in the impugned order dated 21/10/11 and consequently the prayer for quashing the impugned order is refused. Accordingly, the revision fails and is hereby dismissed. Revision dismissed.