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2011 DIGILAW 650 (MP)

Ramhet Sharma v. State of Madhya Pradesh

2011-06-21

G.D.SAXENA

body2011
ORDER G.D. Saxena, J. 1. This petition under Section 482 of the Code of Criminal Procedure 1973 is directed against an order dated 25th August 2010, passed in Sessions Case No. 284/2005 by the 5th Additional Sessions Judge Morena, rejecting thereby the applicaton under Section 311 of Code of Criminal Procedure for re-calling a witness Jayanti Prasad (PW-4), father of the deceased for his cross examination, on the subsequent discovered document with a view to establish the defence by the accused. 2. The facts in brief, just for the decision of this petition are that within seven years of marriage of the deceased Radha with Raju, she died of an unnatural death, by taking some poisonous substance. It is alleged that after marriage of the deceased, her husband and other relatives on matrimonial side used to harass and torture her for their illegal demand of dowry. On the fateful night, her husband and relatives compelled the deceased to drink some poisonous substance. Consequently, after the death of deceased, an FIR was lodged against her husband, father-in-law, elder uncle-in-law, elder brother-in-law, and younger brother-in-law etc. After prosecution evidence and recording the statements of accused, the invitation card of marriage of younger brother of the deceased was discovered by the accused, therefore, with intend to prove their defence that after marriage of deceased Radha with Raju (Accused), the marriage of Pradeep, younger brother of the deceased was solemnized, the accused-Petitioner wants to recall the said witness for his cross-examination on the material point. It is stated that in the marriage of her brother, the ornaments worn by the deceased Radha were taken by her parents which were not returned to her,despite her repeated requests but the same were gifted to the wife of Pradeep. This was the sole reason that she committed suicide and in order to save themselves a false case was registered against the accused-persons by her parents. Therefore, by filing an application under Section 311 of Code of Criminal Procedure ., the accused requested the trial court to summon the said witness for his cross-examination to establish their defence, which prayer was rejected by the trial Court, hence this petition. 3. Learned Counsel for the Petitioner contended that the order of the trial Judge is perverse and not as per provisions of law. The accused have the right to prove their defence by adducing the evidence. 3. Learned Counsel for the Petitioner contended that the order of the trial Judge is perverse and not as per provisions of law. The accused have the right to prove their defence by adducing the evidence. The marriage invitation card of Pradeep, brother of deceased could be available to the accused subsequent to recording of statement of Jainti Prasad, father of deceased by the trial court. Hence, to prove the defence of the accused in the light of the marriage invitation card with some material questions in regard to the subsequent marriage of Pradeep and further to prove the fact that the ornaments of deceased Radha were gifted to wife of Pradeep, which being not returned to her, has resulted her death. Therefore, it is requested that by allowing the present petition, the learned trial court be directed to recall the witness Jayanti Prasad for his cross examination on the material particulars. Reliance is placed on the decision of the Apex court in the case of Mohan Lal Shyamji Soni v. Union of India AIR 1991 SC 1346 and of this Court in the case of Heera Lal v. State of MP 1997 (1) JLJ 250 4. The leaned Penal Lawyer appearing for State/Respondent vehemently opposed the prayer and requested to reject the petition. It is contended that the defence had the ample opportunity to cross examine Jayanti Prasad, father of deceased and also put their defence to the witness. It is submitted that the accused should not be permitted to fill in lacunae in the prosecution case. Therefore, it is prayed for rejection of the petition seeking permission to recall the witness Jayanti Prasad for his further cross examination at subsequent stage of trial. 5. Heard the learned Counsel for the Petitioner and the learned Panel Lawyer for the State and also perused the statement of Jayanti Prasad (PW-4), recorded by the trial Judge with the impugned order and the relevant Law. 6. Section 311 of Code of Criminal Procedure is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. As the section stands there is no limitation on the power of the court arising from the stage to which the trial may have reached, provided the court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is, thus, clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is however, the other aspect namely of the power of the court which is to be exercised to reach a just decision. No doubt, this power is exercisable at any time. 7. In the case of Mohan Lal Shamji Soni v. Union of India and Ors. AIR 1991 SC 1346 the Apex court while interpreting Section 311 of Code of Criminal Procedure ., held as under: The very usage of the words such as 'any court', 'at any stage' or 'of any enquiry' trial or other proceedings', any person or any such person, clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 8. In the case of Shailendra Kumar v. State of Bihar and Ors. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case. 8. In the case of Shailendra Kumar v. State of Bihar and Ors. 2002 (1) Crimes 197 SC while considering the provisions of Section 311 of the Code, the Hon'ble Supreme Court held that bare reading of this Section reveals that it is of very wide amplitude and if there is any negligence, laches or mistake by not examining material witnesses, the Courts function to render just decision by examining such witnesses at any stage is not, in any way impaired. 9. Apparently, Section 311 of Code of Criminal Procedure empowers the power of the court to summon material witness, or examine person present and provides that any Court may, at any stage of 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 just decision of the case. Hence, it is clear that Section 311 allows the court to invoke its inherent powers at any stage, so long as the court retains seisin of the criminal proceedings without qualifying any limitation or prohibition. Needless to say that trial of any court reaches to its finality when the order or judgment is pronounced and until then the court has power to invoke the provisions of Section 311 of Code of Criminal Procedure 10. Thus, the legal position culled out from the aforesaid decisions of the Hon. Supreme Court is that Section 311 Code of Criminal Procedure allows the Court to invoke its inherent powers at any stage, so long as the Court retains seisin of the criminal proceedings without qualifying any limitation or prohibition. In the present case from the material available on record, it is abundantly clear that the Petitioner-accused in order to prove his defence wishes to re-call and cross-examine Jayanti Prasad (PW-4), who is a material witness and whose examination on the subsequent discovered document is essential to the just decision of the case. In the present case from the material available on record, it is abundantly clear that the Petitioner-accused in order to prove his defence wishes to re-call and cross-examine Jayanti Prasad (PW-4), who is a material witness and whose examination on the subsequent discovered document is essential to the just decision of the case. Even otherwise, it well settled that where some beneficial to the defence has come to light, it is just and necessary to permit the accused to cross-examine prosecution witness only on the limited aspect of the case and not beyond that. In the circumstances, therefore, the trial court fell in error in declining to summon Jayanti Prasad (PW-4), by the order impugned. The order impugned therefore cannot sustain. 11. In the result, the petition is allowed. The order impugned dated 25th August 2010 passed in Sessions Case No. 284/2005 by the 5th Additional Sessions Judge Morena, rejecting the application of the Petitioner under Section 311 of Code of Criminal Procedure stands hereby set aside and the trial court is directed to recall the witness, namely, Jayanti Prasad (PW-4), father of the deceased and permit the accused to cross-examine him only on the limited aspect of the case and not beyond that.