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2015 DIGILAW 561 (MP)

Sudhir v. State of M. P.

2015-05-08

M.K.MUDGAL

body2015
JUDGMENT : M.K. Mudgal, J. 1. With the consent of both the parties, the matter is being heard finally at motion stage. 2. The petitioner-accused has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C) being aggrieved by the order dated 24-02-2015 (Annexure-1) passed by the Court of First Additional Sessions Judge, Khandwa in ST No. 199/13 dismissing the application filed by the petitioner under Section 311 of the Cr.P.C for recalling the witnesses namely Rajiv Jain (PW-2), Santosh Jain (PW-3), Shyam Soni (PW-4), Mala Ahirwar (PW-13), Narendra Kumar (PW-23), Manoj Parikh (PW-25), Rajesh Chawda (PW-26) and Rajesh Parikh (PW-27) for cross-examination physiological state. 3. Learned counsel for the petitioner submits that the petitioner-accused is in Central Jail, Indore. The case was listed for recording the statements of witnesses on 22-01-2014, 23-01-2014 and 24-01-2014 before the trial Court but, the petitioner-accused and four other co-accused namely Pradip, Mohd. Inam, Onkar Singh and Pankaj were not produced from the Central Jail, Indore. However, the statement of the witness Rajiv Jain (PW-2) was recorded on 22-01-2014 and the evidence of Santosh Jain (PW-3), Shaym Soni (PW-4) were recorded on 23-01-2014 in the absence of the accused persons. The act of the recording of the statements of the said witnesses is contrary to the provisions of Section 273 of the Cr.P.C as held by this Court in paragraph-4 of the judgment in the case of State of M.P. Vs. Budhram, (DB) 1996 JLJ 80 . Similarly, the evidence of witness Mala Ahirwar (PW-13) was recorded by the trial Court in the absence of the accused persons and the evidence of witnesses Rajesh Chawda (PW-26) and Rajesh Parikh (PW-27) was recorded on 10-12-2014 and on that day, the accused persons were also not produced before the trial Court from the Central Jail, Indore. Though, the counsel was present before the Court but, he had no instructions to plead the case in the absence of the accused persons. The counsel further pleads that an application under Section 311 of Cr.P.C was filed by the accused persons for recalling the witnesses for cross- examination as it is a case of heinous offence under Section 364(A) of IPC which is punishable with imprisonment for life or death sentence. The veracity of the statements of the witnesses can only be tested by the cross-examination. The veracity of the statements of the witnesses can only be tested by the cross-examination. The accused persons should not be deprived of the same whereas there was no fault of the petitioner and the other co- accused on their part to remain absent before the trial Court because they were lodged in Central Jail and they could not appear before the Court until they were produced by the police force hence, they had not deliberately remained absent before the trial Court. In the said circumstances, the learned counsel placing reliance upon the judgment of the Hon'ble Apex Court in the case of Natasha Singh Vs. Central Bureau of Investigation, 2013 Cr.L.J 3346 has prayed that an opportunity of cross- examination should be given to the petitioner as well as other co-accused persons whose names have been stated earlier. 4. The learned Panel Lawyer opposing the submissions made on behalf of the petitioner submits that the counsel for the petitioner was present before the Court and he could have cross-examined the witnesses as he was conducting the trial from the beginning, hence, the order passed by the trial Court is just and proper. 5. Heard the arguments of both the parties. 6. The scope of Section 311 of the Cr.P.C which has been considered by the Hon'ble Apex Court in paragraphs-7 and 14 of the judgment in the case of Rajaram Prasad Yadav Vs. State of Bihar and Anr., 2013 Cri.L.J 3777 on the basis of its judgment in earlier cases reads as follows :- "7. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at 'any stage' of 'any enquiry', or 'trial', or 'any other proceedings' under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case." "14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage', or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case." 7. Similarly, in P. Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242 :(2013 AIR SCW 492), this Court examined the scope of the provisions of Section 311 Cr.P.C. and held as under:- "Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430 ." 8. On perusal of the record, it is evident that when the witnesses were present before the trial Court on 22-01-2014, 23-01-2014 and 24-01-2014 an application for granting adjournment was filed by the prosecutor stating that in the absence of the accused persons, he was not interested for getting the statements of the witnesses recorded before the trial Court. The said prayer was rejected by the trial Court vide order dated 22-01-2014 and the statements of the witnesses were recorded in the absence of the accused persons, who were lodged in Central Jail, Indore. The accused persons were not at fault on their part in not appearing before the trial Court for cross-examination. In the said circumstances, the application filed by the petitioner for recalling the witnesses for cross- examination ought to have been allowed by the trial Court because the veracity of the statements of the witnesses can only be ascertained by cross-examination, which is a valuable right of the accused to defend his case which is a case of heinous offence as stated earlier. 9. It is true that the cases of under-trial should be tried speedily but, they must not be tried in haste, as it would defeat the ends of justice. 9. It is true that the cases of under-trial should be tried speedily but, they must not be tried in haste, as it would defeat the ends of justice. Keeping in view the entire facts and circumstances of the case and for achieving a just decision of the case, the impugned order is hereby set aside and the prayer for recalling the witnesses as stated earlier made by the petitioner is hereby allowed and the trial Court is directed to recall the witnesses and allow the cross-examination to be held under the following terms and conditions :- (a) The petitioner/accused shall ensure that his counsel is present before the trial court when the witnesses are produced for cross-examination. (b) The absence of his lawyer from the Court shall not be a ground for adjournment of the case. If the appointed lawyer of the petitioner is not able to appear before the Court on the day of cross-examination, he shall engage another lawyer to cross- examine the witnesses so that the witnesses are not subjected to harassment of appearing before the Court time and again. (c) The expenses incurred by the witnesses in appearing before the Court shall be borne by the petitioner-accused as determined by the trial Court. 10. The petition is disposed of accordingly. 11. A copy of this order be sent to the trial Court immediately for information and necessary compliance.