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Madhya Pradesh High Court · body

2021 DIGILAW 362 (MP)

Chandra Mohan Sahu v. State of M. P.

2021-03-15

ANAND PATHAK, SHEEL NAGU

body2021
ORDER : Anand Pathak, J. 1. The instant petition under Section 482 of Cr.P.C. has been filed by the petitioner/accused taking exception to order dated 20/1/2021 passed by Special Judge (Prevention of Corruption) Act, Vidisha in Special Case (Lokayukt) No. 5/17; whereby, application filed by respondent/Lokayukt under Section 311 of Cr.P.C. has been allowed. 2. Brief facts giving rise to the controversy are that petitioner/accused is facing trial for alleged offence under Section 7 of Prevention of Corruption Act, 1988. During the course of trial, statement of one Ashok Pachauri (PW/7) was recorded on 22/07/2019. It appears that after recording of statement of said witness, one application under Section 311 of Cr.P.C. was filed by respondent/prosecution for recalling of the witness on the ground that said witness was a witness for trapping and thereafter in other important proceedings including the seizure and he did not support the story of prosecution and declared hostile, therefore, certain documents were to be referred to him for verification in the cross-examination by the prosecution. 3. Petitioner/accused opposed the prayer but the learned trial Court allowed the said application preferred by respondent-Lokayukt and recalled the said witness for further cross-examination. Petitioner is aggrieved by said recalling of witness, therefore, this petition has been preferred. 4. It is the submission of learned counsel for the petitioner that for filling up the lacuna, the recalling of witness cannot be allowed. Incompetency of lawyer is also no ground to recall such witness. Learned counsel for the petitioner placed reliance over the decisions of Apex Court in the matter of Rajaram Yadav Vs. State of Bihar, AIR 2013 SC 3081 , State of Haryana Vs. Ram Nahar, 2016 CrLJ (SC) 865, Mannan SK & Ors. Vs. State of West Bengal, 2014 CrLJ (SC) 4071 and State of NCT of Delhi Vs. Shivkumar Yadav, (2016) 2 SCC 402 . 5. On the other hand, learned counsel for the respondent/Lokayukt opposed the prayer and submits that said witness Ashok Pachauri (PW/7) was a witness at the time when petitioner was trapped while taking bribe and thereafter he was seizure witness also regarding certain documents and said documents were to be put before the witness for verification, therefore, it does not amount to filling up lacuna but to assist the Court to arrive at just decision and the said recalling is in the interest of justice. He relied upon decision of Hon'ble Apex Court in the matter of Natasha Singh Vs. CBI (State), 2013 AIR SCW 3554 & Sister Mina Lalita Baruwa Vs. State of Orissa and Ors., AIR 2014 SCW 14 . He prayed for dismissal of the petition. 6. Heard. 7. It is a case, where, petitioner as accused is aggrieved by the recalling of witness as per Section 311 of Cr.P.C. by the trial Court. Section 311 of Cr.P.C. is reproduced hereinbelow for ready reference:- "311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceedings 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." 8. Perusal of the provision makes it clear that sufficient discretion has been given to the trial Court to recall the witness in the interest of justice and if it feels just and proper to recall the witness for just decision of the case. The case pertains to documents mainly and those documents are to be verified, through the witness and to be shown to him during cross-examination. In special fact situation, when he was material prosecution witness and endorsed his signatures over several documents, but at the same time, in the dock, he did not support the story of prosecution in categorical terms but partly, therefore, if those documents are placed before him for cross-examination then no prejudice would be caused to the parties and rather it would facilitate the Court to reach to a just decision. Accused and prosecution both are meant to assist the Court by facilitating fair trial. No prejudice shall be caused to the accused, if witness is recalled and is referred the documents. 9. Evidence Act provides examination, cross-examination and re-examination of witnesses and therefore, construing Section 311 Cr.P.C. in restricted sense would not be in the interest of justice. It is true that change of counsel or some related flimsy pretext, cannot be invoked by the parties to recall the witness. 9. Evidence Act provides examination, cross-examination and re-examination of witnesses and therefore, construing Section 311 Cr.P.C. in restricted sense would not be in the interest of justice. It is true that change of counsel or some related flimsy pretext, cannot be invoked by the parties to recall the witness. Similarly, lacuna of a party cannot be filled by recalling the witness but at the same time, looking to the intent of legislature and the reason for which the witness was recalled in the present case persuades this Court to affirm the order passed by trial Court rather than to take a divergent view. Under extraordinary jurisdiction under Section 482 of Cr.P.C., it appears that no case for interference is made out. The judgments cited by learned counsel for the parties also stress over discretionary power of trial Court in respect of Section 311 of Cr.P.C. to reach to a just decision. Here trial Court allowed the application in the interest of justice and to reach to a just and fair decision. 10. Resultantly, petition sans merits and is hereby dismissed.