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2019 DIGILAW 322 (MP)

Ambikesh Soni v. State of Madhya Pradesh

2019-04-15

RAJENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : RAJENDRA KUMAR SRIVASTAVA, J. 1. This petition under Section 482 of the Cr.P.C. filed by the petitioner, challenging the order dated 19.01.2019, passed by 2nd Additional Session Judge, Link Court Rampur Naikin, District Sidhi (MP) in Session Trial No. 212/2009, whereby the learned 2nd Additional Session Judge has rejected the application filed by the petitioner under Section 311 of the Cr.P.C. for examining the witness namely Anil Kumar Soni. 2. Learned counsel for the petitioner submits that the petitioner is facing trial before the Court of 2nd Additional Session Judge, Link Court Rampur Naikin, District Sidhi (MP). During trial he has filed an application under Section 311 of Cr.P.C. stating that from perusal of statements of the witnesses he came to know that there was an agreement has been executed between witness Anil Kumar Soni and petitioner on 18.10.2010 and same has been notarized by notary, but due to mistake of his earlier counsel question in this regard could not be asked to witness namely Anil Kumar Soni. He submits that it is much necessary to ask about the same to just decision of the case. The photocopy of the said agreement is annexed by the petitioner in the record but original is under the possession of witness Anil Kumar Soni. The learned trial Court erred in passing the order of rejection whereas it is prima facie shows that if the question regarding affidavit shall not be asked to the witness then petitioner is deprived to get fair justice. 3. On the other hand learned counsel for the respondent/State opposes the same and submits the witness Anil Kumar Soni has already been examined and cross-examined by the petitioner's counsel and only on the ground of mistake of counsel as he was failed to ask the question, recalling of witnesses cannot be permitted. He prays for dismissal of this petition. 4. Heard both the parties and perused the case. 5. Before adverting to the facts of the case, it would be appropriate to read the relevant provision of under Section 311 of the Cr.P.C. as under:- “311. He prays for dismissal of this petition. 4. Heard both the parties and perused the case. 5. Before adverting to the facts of the case, it would be appropriate to read the relevant provision of under Section 311 of the Cr.P.C. as under:- “311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 6. From reading of Section 311 of the Cr.P.C. it is manifested that it comes into operation at any stage to enable the Court to find out the truth by summoning any person as a witness or examined any person who has already examined for obtaining the proper evidence for just decision of the case. The Court should exercised the power under Section 311 of the Cr.P.C. when Court finds it essential to reach the conclusion of the case, but it cannot be used to fill-up the lacunas and to give the benefit to any parties by delaying the trial. The Hon'ble Apex Court has laid down the some guidelines in the case of Natasha Singh vs. CBI (State), (2013) 5 SCC 741 and has held as under: “15. 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. 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” and “at any stage” 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. 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. In the case in hand, from reading of order dated 19.01.2019, it appears that the learned 2nd ASJ has rejected the application filed by the petitioner on the ground that the witness Anil Kumar Soni has already been cross-examined by the counsel for the petitioner. The learned trial Judge has also mentioned that ample opportunity for examining the witness has already been availed by the petitioner. 8. Petitioner has also filed photocopy of agreement, executed between the petitioner and witness Anil Kumar Soni on 18.10.2010, from reading of the same it appears that witness Anil Kumar Soni contended in this agreement that his sister has died on 10.06.2008 by consuming some poisons substance and she had never been tortured by his matrimonial relatives. He also contended that police had lodged false case against the petitioner family and he got Rs. He also contended that police had lodged false case against the petitioner family and he got Rs. 40,000/- from the petitioner and no dispute is remain between them. 9. It appears that the contention of said agreement is important material of the case which needs evidence through examination of witness Anil Kumar Soni to reach just decision of the case. Therefore, it is necessary to give an opportunity to the petitioner to cross-examine the said witness in relation to said agreement to reveal its credibility. 10. From careful reading of the judgment passed by the Hon'ble Apex Court in the matter of Natasha Singh (supra) it is revealed that the Section 311 of the Cr.P.C. expressly provide the Court wide discretion to recall and re-examined any person, if his evidence appears to be essential to the just decision of the case and the Court should not be exercised its discretion arbitrarily, it must be exercised judicially and judiciously, as the case may be. 11. In view of the above said discussion and looking to this fact that an agreement has been produced by the petitioner which is relevant evidence for just decision of the case, it would be appropriate to exercise the inherent power of this Court under Section 482 of the Cr.P.C. 12. Therefore, petition is allowed and trial Court is directed to recall the witness Anil Kumar Soni and give an opportunity to the petitioner to cross-examine him only on the point of said agreement not otherwise. Petitioner shall not take any adjournment for cross-examination of witness. Travel and diet expenses of witness shall be beard by the petitioner and he shall deposit the same before the trial Court under the instruction as given by learned trial Court.