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Madhya Pradesh High Court · body

2018 DIGILAW 609 (MP)

Sanjay Sharma v. State Of M. P.

2018-07-10

S.K.PALO

body2018
ORDER : Shri Sankalp Kochar, learned counsel for the petitioner. Shri Ramjee Pandey, learned Panel Lawyer for the respondent/State. Shri Lalji Kushwaha, learned counsel for the objector. The petitioner has preferred this application under section 482, Criminal Procedure Code, to invoke the extraordinary jurisdiction of this Court and to set aside order dated 22-2-2018, passed by Sixth Additional Session Judge, Bhopal, in ST. No. 1029/2014, whereby the application for recalling the witnesses Kundan Singh (PW.1), and Santosh Kumar Sahu (PW6) has been disallowed. 2. It would be appropriate to mention that the application as regarding P.W5 Adesh Chakrawarti has been allowed because counsel for the accused Sanju alias Sanjay could not cross-examine him on 9-4-2015. 3. On behalf of the petitioner Sanju Sharma, it is contended that the petitioner was in custody, when the earlier order dated 6-4-2016 passed in M.Cr.C. No. 1913/2016, therefore, he could not deposit the cost. It is also contended that subsequently on 19-7-2016 in M.Cr.C.No. 10811/2016 filed by applicant was also dismissed for non-deposit of the amount of cost. It is claimed that the petitioner has not cross-examined, (PW1) Kundan Singh and (PW6) Santosh Kumar Sahu, therefore cross-examination of these witnesses be allowed. 4. Counsel for the petitioner placed reliance on Vijay Kumar vs. State of U.P. and another reported as (2011) 8 SCC 136 , wherein the Apex Court has held that the power under section 311 is discretionary, which is complementary in nature of power under section 165 of the Evidence Act, if the witness is a material witness, opportunity should be provided. 5. Counsel for the petitioner has also placed reliance on Mannan Shaikh and others vs. State of West Bengal and another reported as (2014) 13 SCC 59 , Cr.A. No. 1307/2014, decided on 3-7-2014, the Apex Court has held that if the prosecution or defence has failed to produce some evidence necessary for just and proper disposal of the case, the power under section 311, Criminal Procedure Code, can be exercised to subserve the cause of justice and public interest. 6. Counsel for the petitioner has also placed reliance on Mannan Sheikh vs. State of West Bengal, (2014) 13 SCC 59 , wherein it has been held that the power under section 311, Criminal Procedure Code can be exercised to form an opinion that after just decision of the case, recall or reexamination of witness was necessary. 6. Counsel for the petitioner has also placed reliance on Mannan Sheikh vs. State of West Bengal, (2014) 13 SCC 59 , wherein it has been held that the power under section 311, Criminal Procedure Code can be exercised to form an opinion that after just decision of the case, recall or reexamination of witness was necessary. For recall of the witness in the present case, opportunity was afforded to the petitioner/accused earlier. But the petitioner/accused playing truant has misuse the same and delaying the procedure, hence, further recalling of witness is misused of the provision by the applicant. Hence, the citations mentioned do not attract in the present case. 7. On behalf of the respondent/State the application is vehemently opposed, contending that the applicant Sanjay alias Sanju was given ample opportunity for cross-examination. 8. Counsel for the accused Shri Mohd. Jabbar on the ground of illhealth expressed his inability to cross-examine by filing an application on 5-12-2015. The learned trial Court elaborately described the circumstances, in which the applicant failed to cross-examine the witnesses. In earlier occasion application for cross-examination was allowed by imposing cost, but the witnesses could not be cross-examined. Therefore, further cross-examination of witnesses were disallowed. 9. On behalf of the objector, it is contended that in earlier occasions also the petitioner’s application for cross-examination of PW2, PW3 and PW4 was challenged by filing M.Cr.C. No. 10811/2016. The same was dismissed, whereas on 6-4-2016, this Court allowed the applicant to cross-examine Animesh Pandey (PW2), Rohit Gupta (PW3) and Nanakram (PW.4), but he failed to cross-examine these witnesses by not depositing the cost. 10. It is further contended that the applicant is delaying the trial by some means or the other. The session trial is pending since 2014. 11. 10. It is further contended that the applicant is delaying the trial by some means or the other. The session trial is pending since 2014. 11. Counsel for the respondent has placed reliance on State of Haryana vs. Ram Mehar and others reported as 2016 (3) CCSC 1598 SC, in which the Apex Court has held that — “Code of Criminal Procedure, 1973 — Section 311 read with section 231 (2) Recalling of witnesses for reexamination — Prayer for — High Court annulled order of Additional Sessions Judge wherein he rejected prayer of accused persons seeking recall of witnesses — Legality ofGrounds urged before trial Court fundamentally pertain to illness of counsel who was engaged on behalf of defence and his inability to put questions with regard to weapons mentioned in F.I.R. and weapons referred to in evidence of prosecution witnesses — Held, prosecution examined all witnesses — Statements of all accused persons recorded under section 313 — Defence also examined 15 witnesses-foundation for recall not even remotely makes out a case that such recalling necessary for just decision of case or to arrive at truth — Number of lawyers engaged of their choiceIn such situation recalling of witnesses indubitably cannot form foundation — High Court fallen into absolute error in axing order passed by trial Judge — Impugned order passed by High Court set aside and order of trial Judge restored.” 12. Perused the record. The applicant was denied to cross-examine Animesh Pandey (PW2), Rohit Gupta (PW3) and Nanak Ram (PW4). When this order was challenged in M.Cr.C. No. 1913/2016, on 6-4-2016, petitioner Sanjay alias Sanju was directed to deposit the cost, but applicant failed to deposit the cost and therefore could not cross-examine the witnesses. Therefore, another petition M.Cr.C. No. 10811/2016 was filed. The same was dismissed on 197-2016. 13. Again the petitioner has filed an application for cross-examining the witnesses Kundan Singh (PW1) and Santosh Kumar Sahu (PW6). Vide order dated 22-2-2018, the trial Court disallowed the same. 14. Keeping in view that the petition has been dismissed with regard to Animesh Pandey (PW2), Rohit Gupta (PW3) and Nanakram (PW4) request has been renewed. The learned trial Court dismissed the same on 22-2-2018. Therefore, this fresh petition has been filed for recalling witnesses Kundan Singh (PW1) and Santosh Kumar Sahu (PW6). The petitioner failed to cross-examine the witnesses on earlier occasions. The learned trial Court dismissed the same on 22-2-2018. Therefore, this fresh petition has been filed for recalling witnesses Kundan Singh (PW1) and Santosh Kumar Sahu (PW6). The petitioner failed to cross-examine the witnesses on earlier occasions. The petitioner was allowed to cross-examine, by imposing a cost of Rs.500/by the trial Court. The petitioner did not deposit the same. Therefore, the trial Court disallowed him to cross-examine PW2, PW3 and PW4. The petitioner filed when the petitioner filed M.Cr.C. before the High Court, at that time also he was in custody, it is not a good plea, that he could not deposit the cost for he was in custody. It would be travesty of justice if the petitioner is allowed further time to cross-examine the prosecution witnesses. The petitioner earlier also sought time and did not cross-examine and did not deposit the imposed cost. The petitioner has been prolonging the trial by some means or the other. Therefore, this petition is dismissed with a cost of Rs.2,000/. Petition dismissed.