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Madhya Pradesh High Court · body

2016 DIGILAW 341 (MP)

Ankit v. State of M. P.

2016-04-27

P.K.JAISWAL, VIVEK RUSIA

body2016
ORDER 1. Applicants who are accused in Sessions Trial No.714/2014 for the offences punishable under sections 419, 420, 467, 468, 471, 120B of the IPC and under section 3/4 of the Madhya Pradesh Recognized Examinations Act, 1937 pending before the Additional Sessions Judge, Indore have filed the present petition under section 482 of the CrPC against the order dated 14.10.2015 by which their application under section 311 CrPC has been dismissed for recalling of witnesses PW1, PW2, PW3 and PW4 for cross-examination. 2. As per the facts stated in the memo of the petition that the prosecution examined PW1 Dr.Shubham Atal on 17.3.2015, PW2 Dr.Pushpa Verma on 1.4.2015, PW3 Dr.G. C.Agrawal on 26.5.2015 and PW4 Dr.Pradeep Fadnis on 7.7.2015. Except Dr. Pushpa Verma all were cross examined by the counsel for the applicants. During examination-in-chief of Dr. N. M. Shrivastava (PW5) on 7.7.2015, he produced additional document which was not part of the Challan. Counsel for the accused immediately objected the manner in which the document was filed but learned trial Judge has turned down the objection and permitted the prosecution to file the same which was exhibited as Ex.P-6. Thereafter vide order dated 8.7.2015, right of cross examination of PW5 and PW6 was closed. Against the said order dated 8.7.2015, applicants approached this Court by way of Miscellaneous Criminal Case No.6242/2015 and vide order dated 9.9.2015, the petition was disposed of with a direction to the trial Court to grant opportunity to the applicants to cross-examine PW5 and PW6 and further directed to decide the pending applications filed under section 311 of the CrPC. 3. That after exhibiting Ex.P-6, applicants filed an application under section 311 of the CrPC for recalling of witnesses PW1, PW2, PW3 and PW4 (Annexure P-5). In the said application, it is stated that Ex.P-6 was directly exhibited in the testimony of PW5 and in the interest of justice for a fair trial opportunity be given to cross-examine PW1, PW2, PW3 and PW4 with respect to Ex.P-6. Vide order dated 14.10.2015, the said application was rejected by the trial Court on the ground that the application is not proper and bona fide and that would cause delay to the trial. 4. Vide order dated 14.10.2015, the said application was rejected by the trial Court on the ground that the application is not proper and bona fide and that would cause delay to the trial. 4. Shri Anil Ojha, learned counsel for the applicants submits that one opportunity be given to the applicants to cross-examine PW1, PW2, PW3 and PW4 and all the four witnesses would be cross-examined on the same day as Ex.P-6 was filed after their cross examination was over and the documents annexed to Ex.P-6 are vital documents and in the interest of justice for a fair trial cross-examination of the aforesaid witnesses are necessary. 5. In reply, counsel for the respondent/State supported the order dated 14.10.2015 and submitted that when Dr. Pushpa Verma appeared on number of dates but she was not cross-examined by the counsel for the applicants despite sufficient opportunity was granted for cross-examination and the application under section 311 CrPC was filed purposefully to delay the trial. 6. Admittedly, Ex.P-6 was not the part of challan and the same was filed during examination-in-chief of Dr. N. M.Shrivastava (PW5) and before that examination-in-chief of PW1, PW2, PW3 and PW4, cross-examination has already been done. The applicants have filed an application under section 311 CrPC and in para-3 of the application it is specifically stated “that the accused had no opportunity to cross-examine PW1 to PW4 with respect to Ex.P-6”. Learned Special Judge, VYAPAM, has rejected the application under section 311 CrPC considering the fact that Dr. Pushpa Verma (PW2) was present for cross-examination on various dates i.e. on 13.2.2015, 26.2.2015, 16.3.2015 and 1.4.2015 but she was not cross-examined as the counsel was busy in another case. The Court did not consider the fact that Ex.P-6 was produced during cross-examination of PW5 and before that the examination in chief and cross-examination of PW1, PW2, PW3 and PW4 have already been completed. While deciding Miscellaneous Criminal Case No.6242/2015, vide order dated 9.9.2015, the Division Bench of this Court has observed as under: “The fair trial is a fundamental right under Article 21 of the Constitution of India. The fair trial contemplates that accused shall be given fair opportunity to put his defence. The document Ex.P-6 was not part of the charge sheet and has been sought to be exhibited at the time of chief examination. The fair trial contemplates that accused shall be given fair opportunity to put his defence. The document Ex.P-6 was not part of the charge sheet and has been sought to be exhibited at the time of chief examination. On behalf of the applicants an application under section 91 of the CrPC and under section 311 of CrPC have been filed. In such circumstances providing the sufficient opportunity to defend the learned trial Court ought to have deferred the cross-examination till disposal of application under section 91 of CrPC and under section 311 of CrPC. The closure of right of cross-examination amounts to denial of right of fair trial.” 7. In view of the above observation, we hereby set aside the order dated 14.10.2015 in respect of rejecting application under section 311 of the CrPC and direct the Special Judge to issue summons to PW1, PW2, PW3 and PW4 for their cross-examination in respect of Ex.P-6. As per the undertaking given by the counsel for the applicant, on the date of appearance of the witnesses PW1 to PW4, he will cross-examine all the four witnesses on the same day and would not seek any adjournment on any ground. It is made clear that no further opportunity in this regard shall be given to the counsel for the applicants. 8. With the aforesaid direction, petition is allowed. Anil Ojha for applicants; Aniket A. Naik, Deputy Government Advocate for respondents/State.