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Madhya Pradesh High Court · body

2016 DIGILAW 249 (MP)

Mukesh Kumar Richhariya v. State of M. P.

2016-03-22

SUSHIL KUMAR GUPTA, U.C.MAHESHWARI

body2016
ORDER 1. Heard on the question of admission. 2. On behalf of the petitioner, this miscellaneous criminal case is preferred under section 482 of CrPC being aggrieved by the order dated 5.8.2015 passed by the First Additional Sessions Judge and Special Judge (constituted under the P.C.Act) Vidisha, in Special Case No.5/2013 dismissing the application of the filed under section 311 of the CrPC for recalling and re-examination of the Defence Witness No.1 Ms.Vimla Shukla, the clerk of the Department. 3. In the course of the argument, after taking us through the papers placed on the record along with the impugned order, the petitioner's counsel argued that soon after examining the Defence Witness No.1 Ms. Vimla Shukla, he has filed the application (Annexure P-2) under section 311 of the CrPC before the trial Court to recall her to ask the questions stated in the application and before considering such application, another Defence Witness Ravi Shankar Rai, the then Tahsildar was examined, in which he has stated some other facts and in the light of said facts, the re-examination of the Defence Witness No.1 Ms.Vimla Shukla was necessary, so in any case the trial Court was bound to allow the aforesaid application (Annexure P-2) and extend the opportunity to re-examine the Defence Witness No.1 Ms. Vimla Shukla but contrary to the record and settled position, such application has been dismissed and in such premises, the impugned order is not sustainable and prayed to set aside the same by allowing this petition with a direction to the trial Court to permit the petitioner herein to recall Ms.Vimla Shukla (DW1) and re-examine her from the subject stated in the application or in alternate he said that in any case if the Court comes to the conclusion that the impugned order could not be interfered at this stage by allowing the application (Annexure P-2), then in that circumstance, the petitioner be extended an opportunity to file the fresh application by mentioning some additional facts to recall the aforesaid Defence Witness No.1 Ms. Vimla Shukla and till this extent, this petition be allowed. 4. Vimla Shukla and till this extent, this petition be allowed. 4. Shri J. D. Suryavanshi, learned counsel for the respondent after taking us through the papers placed along with the record, so also the impugned order and also by referring some papers from his brief, argued that in the available circumstances, the impugned order being passed correctly by the trial Court does not require any interference by invoking the provisions of section 482 of CrPC. He further said that the inconsistencies or other things, which have come in the inter se deposition in the Defence Witnesses, as argued by the petitioner's counsel, could be considered by the trial Court by the appreciation of the evidence and the petitioner's counsel is at liberty to make his submission according to his way by taking the advantage of the situation. In continuation, he said that at the time of recording the evidence of Ms.Vimla Shukla (DW1), inspite of the liberty to confront and ask the questions from such witness under section 165 of Evidence Act, the same was not asked, so to fill up the lacuna left by the counsel of the petitioner, by allowing this petition no such opportunity to re-examine the Defence Witness No.1 Ms.Vimla Shukla could be given to the petitioner or in any case liberty to file fresh application could also be not given to the petitioner. He further said that while filing this petition, copy of the evidence of Ravi Shankar Rai (DW2) was not supplied to him and therefore he is not in a position to make specific argument in that respect and prayed for dismissal of this petition. 5. Having heard the counsel, keeping in view the argument advanced, after perusing the papers along with the impugned order available on the record, it is undisputed fact that soon after recording the deposition of Ms.Vimla Shukla (DW1), the aforesaid application (Annexure P-2) was filed and during pendency of the same for adjudication, the deposition of another defence witness Ravi Shankar Rai (DW2) was recorded and as per the submission of the petitioner's counsel, on examining the matter in the light of evidence of both the defence witnesses, it is apparent that in order to clarify certain ambiguity on some issues, the re-examination of Ms.Vimla Shukla (DW1) is necessary. 6. 6. True it is, that the copy of the deposition of Ravi Shankar Rai (DW2) has not been supplied to the respondent's counsel either on filing this petition at the initial stage as criminal revision or subsequent to converting the same and till date, but we are of the considered view that since such evidence is recorded before the trial Court in presence of counsel of both the parties, then mere on account of non-supplying the copy of the same, it can not be said that any prejudice is caused to the respondent if without supplying such copy, the matter is decided. This matter requires consideration as early as possible because as per the submission of the petitioner's counsel, the trial Court has fixed the mater for delivery of the judgment on 28.3.2016 and between today and 28.3.2016, all the days from today (22.3.2016) to 27.3.2016 are holidays and in such circumstances, if the judgment is delivered, then certainly the right of the petitioner to re-examine such witness at the stage of trial may be prejudiced. 7. Hence, in the available circumstances, instead to admit or allowing this petition in toto for quashing the impugned order, the same is hereby disposed of by extending the liberty to the petitioner herein to file a fresh application under section 311 of the CrPC before the trial Court on or before 28.3.2016, by mentioning all the facts, which have been argued by him before this Court to clarify the ambiguity in the deposition of Ms.Vimla Shukla (DW1) with liberty to recall her and permit the petitioner to re-examine her and pursuant to it, the trial Court is directed that on filing such application, the same be considered and adjudicated on its own merits independently without influencing from any observation, finding or direction given in the impugned order or in the order passed by this Court today. 8. It is made clear that mere filing the fresh application does not give right to the petitioner to insist the Court to allow such application. The Court shall consider the same under its discretion in accordance with the procedure prescribed under the law.