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Madhya Pradesh High Court · body

2014 DIGILAW 457 (MP)

Ashish Kumar v. State of M. P.

2014-04-24

S.K.GUPTA, U.C.MAHESHWARI

body2014
Judgment U.C. Maheshwari, J.:- 1. On behalf of the applicant/accused, this revision is preferred under section 397/401 of the Cr.P.C. being aggrieved by the order dated 28.2.2014 passed by the Special Court, constituted under the provision of Prevention of Corruption Act, (in short 'the Act') Shahdol in Special Case No. 1/10 whereby his application filed under section 311 of the Cr.P.C. to recall the examined witness Rajendra Prasad Sharma (PW 1) and extend him the opportunity of cross-examination, has been dismissed. The trial of the aforesaid case with respect of the charge of some offence of the Act is pending against the applicant and on earlier occasion, the in-chief of the aforesaid witness was recorded but after recording such in-chief, instead to cross-examine the witness on behalf of the applicant, his counsel prayed for adjournment on different ground on which, treating such stated grounds to be sufficient, the case was adjourned on various occasions as stated in the impugned order and lastly, the case was fixed for cross-examination of the said witness on 27.1.14. As per case of the applicant, his engaged counsel Shri Dinesh Narayan Pathak, in connection of admission of his daughter in the course of MBA, had gone to 2 Bangalore and due to that reason he was not available to cross-examine the witness on 27.1.14. So, in the absence of such counsel, his colleague/junior counsel Shri Raghvendra Pathak appeared and prayed for adjournment with a request to place the matter on 1.2.14 for cross-examination of such witness saying that Shri Dinesh Narayan Pathak Advocate will come back from Bangalore on 31.1.14 but as per the impugned order such date was not given to the applicant and it was stated in the order that on 1.2.14 the Presiding Officer of the case had to go to attend some training at Gwalior and thereafter he will be on leave on 3rd and 4th of February, 2014 and, in such premises, the aforesaid appearing counsel Shri Raghvendra Pathak was directed to cross-examine the witness on the same day i.e. 27.1.14 and when such counsel said that he is not prepared to cross examine the witness on the same day i.e. 27.1.14 and when such counsel said that he is not prepared to cross examine the witness then the right of the applicant to cross-examine such witness was closed by the trial court. Subsequent to coming aforesaid counsel Shri Dinesh Narayan Pathak from Bangalore, impugned application under section 311 of the Cr.P.C. by mentioning the available grounds for recalling the aforesaid witness for his cross-examination was filed. 2. Such application of the applicant was seriously opposed on behalf of the prosecution before the trial court. On consideration, taking into consideration the various reported cases mentioned in the impugned order by holding that in view of section 362 of the Cr.P.C. subsequent to passing the order to close the right of applicant to cross-examine the aforesaid witness, the trial court did not have any authority to recall or review such order, dismiss the application. In the impugned order it is further observed that in the lack of any inherent power, vested under section 482 of the Cr.P.C. with the High Court and Supreme Court, the aforesaid earlier order dated 27.1.14 could neither be recalled nor reviews. Being aggrieved by such dismissal, the applicant has come to this court with this revision. 3. Applicant's counsel after taking us through the averments of the revision memo along with the impugned order argued that in the available circumstances, according to which the conducting counsel of the applicant was not available at Shahdol to cross-examine such witness for which sufficient information was given to the court by the junior Advocate, the trial court ought to have adjourned the matter for cross-examination of the aforesaid witness Rajendra Prasad Sharma instead to close such right. As considering the cause stated by the applicant to be sufficient cause, the impugned application ought to have been allowed by the trial court. He further said that in pendency of the trial, the provision of section 362 of the Cr.P.C. does not come in the way to consider the application of section 311 of the Cr.P.C. Because the provision of section 311 of the Cr.P.C. has been enacted to give the strength to the court for recalling the witness on sufficient cause who has already been examined in the trial. He further said that if the opportunity to cross-examine such witness is not extended to the applicant then in the lack of it, the applicant could not prove and produce his defence properly and, in such circumstance, his valuable right would be prejudiced and prayed for setting aside the impugned order and to allow his application by allowing this revision. 4. 4. On the other hand, responding the aforesaid arguments, the standing counsel of the respondent by justifying the impugned order said that in the available scenario as stated in the impugned order, the trial court has not committed any error in dismissing the impugned application. As such, the impugned order being based on proper appreciation of the factual matrix, is in accordance with law and does not require any interference at this stage. He also said that inspite extending various dates to cross-examine the aforesaid witness after recording his in-chief the same were not availed and for one reason or another the applicant had not want to cross-examined the aforesaid witness, and thereby he has created the obstruction in holding the trial. In view of such conduct of the applicant also the impugned order does not require any interference. With these submissions he prayed for dismissal of this revision. 5. Having heard the counsel, keeping in view the arguments advanced, we have carefully gone through the revision memo along with the other papers placed on the record so also the impugned order. True it is that after recording the in chief of the witness Rajendra Prasad Sharma (P.W. 1) on various occasion adjournment were prayed and the same were taken on behalf of the applicant by his counsel but it is apparent from the impugned order that every adjournment was given by the trial court to the applicant on the basis of the availability of sufficient cause and, in such premises, we are of the considered view that when any adjournment was granted at earlier stage in the matter on the basis of sufficient cause then those adjournments could not be taken into consideration at subsequent stage to consider the fresh prayer of adjournment in the matter. On 27.1.14 the date fixed to cross-examine the aforesaid witness the engaged counsel of the applicant Shri Dinesh Narayan Pathak was not available at Shahdol, as he had gone to Bangalore in connection of admission of his daughter in MBA course then the prayer of adjournment on such ground made by his junior counsel was to be considered by the trial court only on such cause, but it appears that such prayer for adjournment was not considered by the trial court only on such cause, but it appears that such prayer for adjournment was not considered keeping in view only such cause but the same was considered in the light of the orders passed earlier granting adjournments to the applicant for cross-examination of the aforesaid witness. So, firstly, the order dated 27.1.14 closing the right of the applicant to cross-examine such witness being passed contrary to trite law after taking into consideration the aforesaid earlier orders of adjournments based on the then sufficient cause was not sustainable because in view of the provision of section 362 of the Cr.P.C., the trial court did not have any authority to take into consideration the earlier orders of adjournments based on sufficient cause to consider the prayer of adjournment made by the junior counsel on the aforesaid ground of non-availability of the counsel Shri Dinesh Narayan Pathak. As such the earlier order of adjournments had got finality and could not be subject matter to refuse the prayer of adjournment at subsequent stage. In such premises on filing the impugned application, the same ought to have been considered by the trial court only by examining the aforesaid cause of non-availability of the counsel. 6. It is also apparent that on account of non-availability of the engaged counsel Shri Dinesh Narayan Pathak due to aforesaid reason on 27.1.14 the date fixed to cross-examine said witness, his colleague/junior counsel Shri Raghvendra Pathak had made the prayer on such date for adjournment with a prayer to give the fixed date 1.2.14 because said conducting counsel was to come on 31.1.14 from Bangalore. In the available circumstances such prayer was based on the aforesaid ground being genuine should have been allowed. In the available circumstances such prayer was based on the aforesaid ground being genuine should have been allowed. But the trial court did not adjourn the case and directed the appearing counsel to cross-examine the witness saying that the Presiding Officer of the court is not available on 1.2.14 as he has to go to attend some training at Gwalior and when such counsel did not cross-examine the witness then the right of cross-examine the witness was closed. In such premises, we are of the view that the trial court could have fixed the date for cross-examination of such witness after 1.2.14 and if the Presiding Officer was on leave on 3rd and 4th of February, 2014 then it could have been fixed after 4th of February, 2014 but only keeping in view the convenience of the Presiding officer of the court as he was not available on 1.2.14, the valuable right of the applicant to cross-examine the aforesaid witness inspite availability of sufficient cause for adjournment was closed. In such premises also the approach of the trial court in dismissing the impugned application appears to be arbitrary and same requires interference at this stage. 7. In view of the aforesaid discussion, it is apparent that the opportunity to cross-examine the aforesaid witness of the applicant was closed contrary to the settled jurisprudence of the criminal law and, therefore, if any application under section 311 of the Cr.P.C. was filed on his behalf to recall the aforesaid witness and extending the opportunity to cross-examine him then looking to the language and spirit of section 311 of the Cr.P.C., under the vested discretionary jurisdiction, the trial court ought to have allowed such application and extend the opportunity to the applicant counsel to cross-examine the aforesaid witness by recalling him before the court. 8. At this stage, we deem fit to reproduce the section 311 of the Cr.P.C. as ready reference. The same is read 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. The same is read 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 just decision of the case. Mere perusal of the aforesaid section it is apparent that after examining the witness, if in the available circumstances, his evidence is necessary then the court may recall the witness and record the evidence. So, in view of such specific provision for recall of the witness, the impugned application should not have been dismissed by the trial court by taking the shelter of the provision of section 362 of the Cr.P.C. Such provision is applicable only against the final judgment or order in a criminal case. The application for recall of the witness could not have been rejected by the trial court mere on the technical ground of section 362 of the Cr.P.C. by holding that the trial court did not have any authority or jurisdiction to entertain and decide such application. The trial court could have dismissed such application if, on merits, the prayer of the applicant was not found to be bona fide but the same has not been dismissed on such count. I deem fit to mention here that in the available circumstances if the opportunity of cross-examination to the aforesaid witness by recalling him in the trial is not given to the applicant then his right to defend the matter would be seriously prejudiced. 9. In view of aforesaid discussion, the arguments advanced by the standing counsel of the respondent have not appealed me and, therefore, the same are hereby failed. 10. In view of the aforesaid discussion, the impugned order being perverse and contrary to law could not be sustained. Consequently, by setting aside the same, the impugned application of the applicant filed under section 311 of the Cr.P.C. to recall the aforesaid witness Rajendra Prasad Sharma (P.W. 1) and extend him the opportunity to cross-examine him, is hereby allowed. 10. In view of the aforesaid discussion, the impugned order being perverse and contrary to law could not be sustained. Consequently, by setting aside the same, the impugned application of the applicant filed under section 311 of the Cr.P.C. to recall the aforesaid witness Rajendra Prasad Sharma (P.W. 1) and extend him the opportunity to cross-examine him, is hereby allowed. Pursuant to it, the trial court is directed to extend one opportunity to the applicant to cross-examine the aforesaid witness by recalling him before the court. 11. In the available circumstances, the trial court is further directed that after receiving the certified copy of this order, recall the aforesaid witness by fixing the date within 15 days and, on the date so fixed, if the witness Rajendra Prasad Sharma appears, then extend opportunity to the applicant to cross-examine him and if on such date, the applicant's counsel does not cross-examine such witness, and prayed for adjournment on any ground then his right to cross-examine such witness, shall come to end automatically without any further order or direction of this court. Such court is further directed to record the cross-examination, reexamination and re-cross examination, if necessary, of such witness on day-to-day basis till his deposition is over. As such, no adjournment shall be given by the trial court for cross-examination, re-examination and re-cross examination, if necessary, of the aforesaid witness Rajendra Prasad Sharma. The applicant's counsel is directed to submit the certified copy of this order in the trial court on or before 30.04.2014 otherwise the applicant shall not be entitled to get the benefit of this order. The revision petition is allowed with aforesaid observations and directions.