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2015 DIGILAW 124 (MP)

Imrat Singh v. State of M. P.

2015-01-31

B.D.RATHI

body2015
JUDGMENT : B.D. Rathi, J. Heard. This petition under Section 482 of the Code of Criminal Procedure has been preferred invoicing the inherent powers of the Court for the following relief: "By allowing the present petition, order passed by the Revisional Court dated 29.11.2014 in Criminal Revision 143/2014 and the order passed, by the trial court dated 5.11.2014 in Criminal Case No. 1728/2007 be quashed." Facts of the case, in brief, are that petitioners are facing trial in connection with Crime No. 272/2007 for the offence punishable under Sections 323, 294, 325 and 308/34 of IPC. During the course of trial, after examination of witness Dr. Anoop Verma on 8.10.2013 and other witnesses, the case of the prosecution was closed. The matter was fixed for defence evidence and, then the case was fixed for final arguments on 4.6.2014. On 4.6.2014, final arguments were heard and the case was fixed for delivery of the judgment on 18.6.2014. Thereafter, case was again reopened because of alteration in-charges and fixed' for final arguments on 9.7.2014. Then, the final arguments were heard and the case was posted for judgment on 19.7.2014. On that date, an application under Section 311 of Cr.P.C. was filed by the prosecution for recalling Dr. Anoop Verma (P.W. 10) for re-examination just to clarify whether bone of left leg was fractured or-of right leg. Previously, in the evidence of Dr. Anoop Verma, it was deposed that the fracture was found in the left leg but as per the X-ray plate A2 right leg has been found fractured. 2. Having heard counsel for the parties, application was allowed by the trial court on 5.11.2014 by saying that just to observe clarity and arrive at a right conclusion, explanation from Dr. Anoop Verma is required. This order was challenged in revision but the same was dismissed on the ground that the order passed under Section 311 of Cr.P.C. is an interlocutory order and 'no revision is maintainable under Section 397(2). 3. It is submitted by Shri Bansal, learned counsel for the petitioners that because the case was already fixed for final judgment, therefore, it cannot be said that enquiry or trial is pending and hence on the date fixed for judgment such kind of application preferred under Section 311 of Cr.P.C. could not have been entertained by the learned trial court. It is submitted by Shri Bansal, learned counsel for the petitioners that because the case was already fixed for final judgment, therefore, it cannot be said that enquiry or trial is pending and hence on the date fixed for judgment such kind of application preferred under Section 311 of Cr.P.C. could not have been entertained by the learned trial court. Apart that it is a settled law that to fill up the lacuna, witnesses should not be called by invoking powers under Section 311 of Cr.P.C. In support of such contention, attention of the Court has been drawn towards the judgment rendered by the Hon'ble Supreme Court in the matter of Cheeku Singh Vs. State of Rajasthan, (1998) CriLJ 950. 4. Prayer made by the, petitioners learned counsel has been opposed on the ground that revisional Court has rightly, passed the order in accordance with law. Impugned order of the trial court was interlocutory in-nature and therefore it was rightly held by the revisional court that, the revision was not maintainable. Learned Panel Lawyer further submitted that it was not the case where the lacuna had to be filled up. In fact doctor has already been examined but for one or another reason, or by typing mistake fact of fracture was deposed contrary to the X-ray plate, therefore, in' order to observe clarity and above at a right conclusion the order was rightly passed by trial court by allowing the application preferred by the prosecution under Section, 311 of, Cr.P.C. to call Dr. Anoop, Verma (P.W. 10) for reexamination. Petition being misconceived is liable to be dismissed. 5. Having regard to the arguments advanced by the learned counsel for the parties, entire, material has been perused. 6. Admittedly, application under Section 311 of Cr.P.C. was filed on the date when, the case was fixed for judgment. In this regard, it is worthwhile to quote provisions of Sections 311 and 353(1) of Cr.P.C. which are as under: Section 311. Having regard to the arguments advanced by the learned counsel for the parties, entire, material has been perused. 6. Admittedly, application under Section 311 of Cr.P.C. was filed on the date when, the case was fixed for judgment. In this regard, it is worthwhile to quote provisions of Sections 311 and 353(1) of Cr.P.C. which are as under: Section 311. The 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 witnesses, or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." Section 353(1) of the Code of Criminal Procedure, speaks about judgment. "353(1): The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleader. (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and, explaining the substance of the judgment in a language which is understood by the accused or his pleader." Accordingly, it is held that the order passed by the trial court was contrary to law and illegal. 7. It is, made clear that whenever such kind of illegal orders are passed and brought to the notice of the superior court then in the interest of justice such kind of orders, may be interlocutory in nature, can be set aside by revisional court. 8. By invoking inherent, powers under Section 482 of Cr.P.C. such type of mistake committed by passing the illegal order can be corrected by this Court. 9. Accordingly, petition stands allowed. Impugned order passed by the courts below are hereby set aside. It is further made clear that if the aforesaid witness has been re-examined, in view of the application filed under Section 311 of Cr.P.C. by the prosecution, then such evidence recorded be not taken into, consideration, The Trial Court would be free to consider that upto what extent the evidence of expert witnesses is reliable in comparison to the medical documentary evidence. Copy of the order be sent to the concerning courts.