Research › Search › Judgment

Madhya Pradesh High Court · body

2024 DIGILAW 515 (MP)

Mukesh Pandey v. State of M. P.

2024-07-25

VISHAL DHAGAT

body2024
ORDER 1. Applicants have filed this petition under section 528 of the Bhartiya Nargik Suraksha Sanhita, 2023 for quashing of the order 16.12.2021 passed by the Judicial Magistrate First Class, Hanumana District Rewa. 2. Learned counsel for the applicants draws attention of this Court towards the order dated 18.2.2022 by which stay has been granted to applicants. Court in its order dated 18.2.2022 has held as under:- "Upon reading section 165 of the Evidence Act, which is in Chapter-10 of the Evidence Act pertaining to " of examination of witnesses", prima facie it appears to be the power vested in the trial Court Judge at the time when the witnesses is testifying, to put any question at any time to any of the witnesses about any fact relevant or irrelevant and may order the production of any document and neither the parties nor their agents shall be entitled to make any objection to any such question or order nor without the leave of the Court to crossexamine any witness upon any answer given in reply to such questions. The proviso provides that the judgment of the trial court must be based upon the facts declared by this Act be relevant and duly proved. Prima facie, it appears that the learned trial Court has tried to over come the bar of section 362Cr.P.C. because the application under section 311 Cr.P.C. moved by the respondent No.2 having been dismissed by the trial Court and the revision also against the said order been dismissed by the Court of revision had attained finality and therefore, a fresh application under section 311 Cr.P.C. could not have been entertained for the recall of these witnesses. Thus, it appears prima facie that there has been an error of judgment on the part of the learned trial Court in exercising authority under section 165 of the Evidence Act which does not appear applicable in the present case. Under the circumstances, till the next date of hearing further proceedings in Criminal Trial No.1339/2009 pending in the Court of learned JMFC, Hanumana,District Rewa shall stand stayed." 3. It is submitted by him that said order be made final and petition be allowed. 4. Counsel for the respondent No.2 submitted that accused was acting hand in gloves along with police station and, therefore, warrants could not be served on complainant and witnesses. It is submitted by him that said order be made final and petition be allowed. 4. Counsel for the respondent No.2 submitted that accused was acting hand in gloves along with police station and, therefore, warrants could not be served on complainant and witnesses. Complainant and witnesses have no knowledge that they are being called to give evidence in Court. Offences committed by the accused person was serious in nature. Taking into account aforesaid circumstances, trial Court has rightly allowed application under section 165 of the Evidence Act. 5. Govt. Advocate for the State also supported the aforesaid facts and made a prayer for dismissal of the case. 6. Heard learned counsel for the parties. 7. Trial Court has closed prosecution evidence vide order dated 9.4.2021. Thereafter, application was filed under section 311 Cr.P.C. for examination/cross examination of witnesses. Said application was dismissed vide order dated 12.8.2021. Thereafter, prosecution has filed an application under section 165 of the Evidence Act. Said application was allowed vide order dated 16.12.2021. Order dated 16.12.2021 is under challenge before this Court. 8. On going through the facts of the case, it is found that right of prosecution to adduce evidence has been closed by the Court on 9.4.2021. Said order has never been challenged before Higher Courts. Since right of prosecution to adduce evidence has been closed by the trial Court consciously and, therefore, further application which is filed by the complainant/prosecution under section 311 Cr.P.C. of the Cr.P.C. or under section 165 of the Evidence Act could not have been allowed. Allowing said application will amount to review earlier order dated 9.4.2021 by which right of prosecution to adduce evidence has been closed. Trial Court in the interest of justice and seeing gravity of offence has allowed application under section 165 of the Evidence Act, but said application could not have been allowed as Court has closed the right of prosecution to adduce evidence. Judge has power to put questions to witnesses and may order for production of any document or thing. In this case no occasion arises for putting questions to witnesses has right to give evidence by prosecution has already been closed on 9.4.2021. Said order has not been challenged. Court cannot exercise under section 165 of the Evidence Act when right to adduce evidence by prosecution has been closed. In this case no occasion arises for putting questions to witnesses has right to give evidence by prosecution has already been closed on 9.4.2021. Said order has not been challenged. Court cannot exercise under section 165 of the Evidence Act when right to adduce evidence by prosecution has been closed. Permitting same will amount to review of the order dated 9.4.2021 under garb of exercising power under section 165 of the Evidence Act. 9. In view of same, writ petition is allowed. Order dated 16.12.2021 is quashed. 10. Certified copy as per rules.