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2023 DIGILAW 141 (MP)

Ram Gopal Gupta v. The State of Madhya Pradesh

2023-01-27

DINESH KUMAR PALIWAL

body2023
ORDER 1. This revision under section 397/401 of Cr.P.C has been filed assailing the order dated 25.7.2022 (Annexure A/1), passed by the 4th ASJ, Satna in S.T.No.161/2016, whereby an application under section 311 filed by the prosecution has been allowed and alleged bankers cheques on which manipulation is stated to have been made are summoned along with witnesses for exhibiting the same in evidence. 2. Learned counsel for the applicant has submitted that in the year 2016 S.T.No.161/16 (State of M.P. v. Ramgopal Gupta) for commission of offence under sections 420, 467, 468, 469, 471 and section 409 of IPC was transferred to the Court of 3rd ASJ by Sessions Judge, Satna for trial. Charges were framed long back in 2016. After closure of the prosecution evidence defence closed its evidence on 9.1.2020 and case was fixed for final arguments for 24.1.2020. It is submitted that in a period of more than two and a half years final arguments were not heard in the meantime. On 9.6.2022, prosecution moved an application under section 311 of Cr.P.C. which was allowed by the impugned order and prosecution was permitted to summon the original bankers cheques along with witnesses Babulal Kumre PW3 who was examined and cross-examined 5 years back on 27.9.2017 for further evidence. 3. It is also the contention of learned counsel that earlier applicant had moved an application under section 311 of Cr.P.C on 9.10.2018 for recalling of witness Babulal PW3 but same was dismissed by the trial Court on the ground that witness was examined long back and therefore, there is no need of his re-examination vide order dated 24.12.2018. It is urged that when application filed by accused was dismissed long back, learned trial Court ought not to have allowed the application filed by the prosecution to fill up the lacuna. Thus, he has prayed for the quashment of the impugned order dated 25.7.2022 (Annexure A/1). 4. On the other hand, learned Panel Lawyer for the State has contended that learned trial Court was fully justified in allowing the application under section 311 of Cr.P.C filed by prosecution as whole prosecution case depends on the manipulated cheques which were earlier not exhibited by calling the same from the Treasury. Therefore, learned trial Court was fully justified in allowing the application. Thus, he has prayed for dismissal of the revision petition. 5. Therefore, learned trial Court was fully justified in allowing the application. Thus, he has prayed for dismissal of the revision petition. 5. I have heard learned counsel for the parties and perused the record. 6. Provisions of section 311 of Cr.P.C reads 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.” 7. The object of provisions for recalling 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. The purpose of a criminal trial is orderly society and that to find out the truth, summoning of witnesses which are material cannot be said to be unjustified as the petitioner would have complete opportunity to cross-examine the witness. 8. It is not a case of lacuna but the failure of prosecution to produce original manipulated cheques as relevant evidence during the course of trial which are already available with the case record and are kept in the treasury for its safety. Such evidence is not filling of a lacuna, but a case of oversight in the management of the prosecution which cannot stated to be irreparable lacuna. 9. In this case, the entire prosecution story hinges on the manipulation made by the accused in the cheques which were in his custody. Therefore, it cannot be said that learned trial Court has committed any error in allowing the application filed by the prosecution. Recall is not a matter of course and the discretion given to the Court has to be exercised judiciously to prevent failure of justice. 10. The powers conferred under section 311 of Cr.P.C are vested with the Court for just and proper decision of the case. Recall is not a matter of course and the discretion given to the Court has to be exercised judiciously to prevent failure of justice. 10. The powers conferred under section 311 of Cr.P.C are vested with the Court for just and proper decision of the case. The section specifically mentions that any Court may, at any stage of any enquiry, trial or other proceeding of this code, summon any person as a witness or examine any person in attendance, though not served as a witness, recall or re-examine any person already examined. This power is solely vested with the Court and not confined to any particular class of person. Therefore, no fault is visible in the order passed by the trial Court. 11. However, before parting with the matter, it would not be out of course to mention that in this case, prosecution had closed its evidence long back in the year 2019 and defence had closed its evidence on 9.1.2020. It is regretful to note that Presiding Officers of the Court seized with the matter continuously avoided to hear the final arguments in the case for more than two and a half years and in this period case was continuously fixed for final arguments. It is a sorry state of affairs on the part of Presiding Officers of the Court who are seized with the matter. Learned Session Judge, Katni is expected to personally look into such type of other matters pending in the Courts and to apprise Presiding Officer not to keep pending the matter for the years together for hearing final arguments. 12. For the reasons stated herein above, no infirmity is visible in the impugned order passed by the learned trial Court. Hence, this petition being devoid of merits is dismissed. A copy of this order be sent to Principal District and Sessions Judge, Katni for necessary action.