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2018 DIGILAW 75 (MP)

Manoj Kumar v. State of M. P.

2018-01-17

SUSHIL KUMAR PALO

body2018
ORDER 1. This petition under section 482 CrPC has been preferred to invoke the extraordinary jurisdiction of this Court and to set aside the order dated 19.12.2017, passed by the Special Judge, NDPS Act, Dindori in Special Case No. 3/2016, wherein the application under section 311 of CrPC, filed by the petitioner/accused has been dismissed. 2. Bereft of the unnecessary details, the facts requisite for disposal of this petition are that the petitioner is facing trial under sections 8(b) and 20 of the NDPS Act. In the criminal proceeding, the statement of Shri S.L. Markam (PW6) has been recorded on 12.6.2017. During the course of cross-examination on behalf of the petitioner an application under section 91 of the CrPC has been filed. Therefore, the cross-examination of S.L. Markam (PW6) was deferred. Subsequently, his further cross-examination was recorded on 21.8.2017 and he was cross-examined by the counsel for accused persons at length. The petitioner/accused filed an application under section 311 of the CrPC on 25.9.2017, stating that S.L. Markam (PW6) be recalled for further cross-examination as certain questions including the identification, weighing panchnama, samras panchnama, seizure panchnama, sampling panchnama, sealed panchnama, reaching the spot panchnama, talashi panchnama, mukhbir panchnama and search warrant etc could not be asked. 3. The learned trial Court vide the impugned order held that cross-examination has been recorded at length. 4. Earlier counsel Shri Siddharth Shukla cross-examined the witness on all issues. Hence further cross-examination in this regard is not justified. Therefore, the application is dismissed. 5. The petitioner has preferred this petition on the ground that the petitioner is facing trial for NDPS offence. Therefore, it is very “essential to call S.L. Markam (PW6) who prepared the pachnama as mentioned above. Hence, the application filed by the petitioner deserves to be allowed in the interest of justice. In this regard, he placed reliance on Natasha Singh v. Central Bureau of Investigation (State), 2013 CrLJ 3346 (SC) and P. Sanjeeva Rao v. State of Andhra Pradesh [ (2012)7 SCC 56 ]. 6. Per contra, learned G.A for the respondent/State opposed the contentions and submits that the S.L. Markam, I.O has been thoroughly cross-examined by earlier engaged counsel Shri Siddharth Shukla. Therefore, further cross-examination in this regard is not proper. 6. Per contra, learned G.A for the respondent/State opposed the contentions and submits that the S.L. Markam, I.O has been thoroughly cross-examined by earlier engaged counsel Shri Siddharth Shukla. Therefore, further cross-examination in this regard is not proper. It is also contended that for filling up the lacunae, witness should not be called for further cross-examination and the witness was examined earlier on 12.6.2017 and on 21.8.2017. Again the accused/petitioner further pray to cross-examine, which is not fair. 7. Perused the record. 8. The cross-examination of the witness S.L. Markam (PW6) was deferred earlier because of the application under section 91 CrPC filed by the petitioner on 12.6.2017. Subsequently, his examination was conducted on 21.8.2017. 9. No doubt that fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. Merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer as has been held in Maria Margarida Sequeria Fernandes and others v. Erasmo Jack de Sequeria (Dead) through LRs [ 2012(3) SCALE 550 ]. 10. But in the present case at the request of the petitioner/accused once the case was adjourned and later cross-examination was conducted at length. In the case of Natasha Singh v. Central Bureau of Investigation (State), (supra), Ho'ble the apex Court has held that : "trial Court cannot prejudge evidence of witnesses sought to be examined." Hence, the case of Natasha v. CBI (supra), is not attracted in the present case, as in that case request was made for calling handwriting expert to be examined. 11. In the case of P. Sanjeeva Rao v. State of Andhra Pradesh (supra), the Hon'ble apex Court has held that : "Court can recall any witness for cross-examination for the "just decision of the case"Prayer for recalling two PWs for cross-examination at a belated stageis allowed." 12. In that case the defence had made prayer for reserving his right to cross-examine at a later stage. Therefore, accused held to be given opportunity to defend himself by permitting to recall the witness. 13. In that case the defence had made prayer for reserving his right to cross-examine at a later stage. Therefore, accused held to be given opportunity to defend himself by permitting to recall the witness. 13. In the case of State (NCT OF DELHI) v. Shiv Kumar Yadav and another, [ (2016)2 SCC 402 ], the Hon'ble apex Court has held that : "Plea of recall Has to be bona fide Mere (in)competence/change of counsel cannot be ground for recall of witnesses- Held, recall cannot be allowed on plea that defence counsel (previous) was not competent and had not effectively cross-examined witnesses- Recall is not a matter of course and discretion given to Court has to be exercised judiciously to prevent failure of justice and not arbitrarily- Plea for recall for advancing justice has to be bona fide and has to be balanced carefully with other relevant considerations including uncalled for hardship to witnesses and uncalled for delay in trial- Mere observation that recall was necessary "for ensuring fair of trial"is not enough unless there are tangible reasons to show how fairness of trial, suffered without recall." 14. The object of provision for recall is to reserve the power with the Court to prevent any injustice in the conduct of the trial at any stage. The power available with the Court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the Court before the power is exercised. Though fair trial is a part of guarantee under Article 21 of Constitution of India but it has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. 15. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. It cannot be understood to mean that recall can be allowed for the asking or reasons related to“mere convenience. It has normally to be presumed that the counsel conducting a case is competent, particularly when a counsel is appointed by choice of a litigant. It cannot be understood to mean that recall can be allowed for the asking or reasons related to“mere convenience. It has normally to be presumed that the counsel conducting a case is competent, particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in Court repeatedly, particularly in sensitive cases such as the case is hand. It can result in undue hardship to the Investigation Officer if required to be appear repeatedly in the Court to face crossexamination, leaving his official duty. 16. For the above reasons, this petition is dismissed. S.S. Thakur for petitioner; Pramod Choubey, Government Advocate for respondent/State.