Ashutosh Verma vs The State Of Madhya Pradesh
2021 Latest Caselaw 4161 MP

                                           1                      M.Cr.C.No.38225/2021



       HIGH COURT OF MADHYA PRADESH : JABALPUR
                    Misc. Criminal Case No.38225/2021

                                 Ashutosh Verma

                                         vs.

                            State of Madhya Pradesh
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Shri Suyash Mohan Guru, learned counsel for the petitioner.
Shri Abhijeet Awasthi, learned counsel for the respondent Lokayukta.
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CORAM :
Hon'ble Shri Justice Prakash Shrivastava.
Hon'ble Shri Justice Virender Singh.
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Whether approved for reporting: Yes/No
Law laid down:
Significant paragraphs:
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                                    ORDER

11.08.2021 Per : Virender Singh, J.

Being aggrieved by order dated 20th July 2021 passed by the Special Judge, Prevention of Corruption Act, 1988, Chhatarpur in Special Case No.10/2015, the petitioner has preferred the present petition.

2. Vide impugned order, the learned Trial Court has allowed the application of the prosecution/respondent herein to recall the complainant to recognize and prove his voice along with the voice of the complainant recorded during the alleged demand of illegal gratification. The C.D. of recorded conversation was produced and proved during the examination of the complainant but it was not played in the Court

during his statement. Considering that playing the C.D. was very much necessary to prove its contents and to identify the voices of the conversator, the prosecution filed an application under Section 311, Cr.P.C for recalling, re-examining the complainant.

3. The objection of the petitioner is that after facing a trial and after completion of evidence in the last 5-6 years, the trial Court heard the final arguments and posted the case for declaration of judgment. At this stage, the prosecution filed the application for recalling of the complainant which is not maintainable. Further contention of the petitioner is that the application has been filed to fill-up the lacuna by producing an altogether new evidence, which is not permissible in law; that too, at the feg end of the Trial. Therefore, the Trial Court has erred in allowing the application. The petitioner seeks quashment of the impugned order.

4. Supporting the order of the Trial Court, the learned counsel representing the respondent/State has submitted that the prosecution does not want to produce any new evidence. The C.D. of conversation of illegal demand/gratification was produced with the charge-sheet. It's copy was also supplied to the petitioner. Since initiation of the trial, it was on record and was very well marked and proved during earlier examination of the petitioner. But, inadvertently, it could not be played before the Court at that time while it was necessary in view of the verdict of the Hon'ble Supreme Court rendered in Zahira Habibulla H. Sheikh and another v. State of Gujarat and others [(2004) 4 SCC 158]. Learned counsel for the respondent has referred to paragraph 51 of the judgment.

5. It is further pleaded that playing of the C.D. is necessary and is in the interest of both the parties i.e., the prosecution as well as the petitioner to ascertain the claim of the prosecution as to whether the

C.D. contains the voice of the complainant and of the petitioner. It is also argued that the petitioner has full opportunity of further cross- examination of the witness to dislodge the claim of the prosecution. Therefore, no prejudice will be caused to him. Emphasizing that the playing of C.D. is necessary for the just and proper decision of the case, the learned counsel for the State prays for dismissal of the petition.

6. We have heard the counsel for the parties and have perused the record.

7. The learned Trial Court has allowed the application observing that Section 311 comprises of two parts out of which, the first part, is discretionary; while the second part is mandatory and says that whenever it is felt by the Court that recalling of any witness is necessary for the just and proper decision of the case, the Court is bound to recall the witness. It is further observed that the C.D. of conversation was produced and proved by the prosecution at the time of the earlier examination of the petitioner but it could not be played before the Court at that time while it was very much necessary to arrive at a conclusion as to whether the C.D. contains voice of the complainant as well as of the petitioner.

8. The facts are not disputed that the C.D. of conversation was produced with the charge-sheet and was proved and marked as Article during the earlier examination of the complainant. The case of the prosecution is that C.D. contains voice of complainant as well as the voice of the petitioner with regard to the alleged demand of illegal gratification. Thus, the Trial Court is right to hold that to establish the charge against the petitioner, it is necessary to play the C.D. before the Court and to grant an opportunity to the prosecution as well as to the petitioner to prove or to disprove the allegation levelled against him. The Trial Court has referred to the case of Rajendra Prasad v.

Narcotic Cell (AIR 1991 SC 2291); wherein the Hon'ble Apex Court has held that any lacuna in conducting the trial by the public prosecutor cannot be considered as the lacuna on the part of the prosecution.

9. In the cases of Jamatraj Kevalji Govani v. State of Maharashtra (AIR 1968 SC 178), Vijay Kumar v. State of U.P. (2011) 8 SCC 136, Natasha Singh v. C.B.I. (2013) 5 SCC 741 and V.N. Patil v. K. Niranjankumar (2021) 3 SCC 661, the Hon'ble Supreme Court has made it clear that an inquiry or trial comes to an end when the judgment or order is pronounced and until then the Court has power to act under Section 311, Cr.P.C. The Apex Court has further observed that Section 311 Cr.P.C. confers a wide discretion on the Court to act as the exigencies of justice require. This power can be exercised at any stage of the trial when the evidence which may be tendered by a witness is germane to the issue involved, or if such evidence is adduced or relevant material is not brought on record due to any inadvertence may harm the process of finding out the truth or may cause failure of justice. It has been emphasised that the power under Section 311 Cr.P.C. should be exercised for the just decision of the case. If the Court finds that the examination of a witness is essential for just decision of the case, it should exercise the power conferred under this Section. At this stage the only relevancy of the evidence proposed to produced is to be considered and not its probative value as it can be weighed after the evidence comes on record.

10. In this case the Trial Court has observed that the re-examination of the complainant is very much necessary to play the C.D. already available on record before him to identify the voices of the complainant and of the petitioner. We do not find any incorrectness, illegality or perversity in the findings in the observation of the Trial Court. Having regard to the nature of allegations levelled against the petitioner, nature

of evidence proposed to be produced, availability of C.D. since the initiation of the trial, it does not appear to us that any illegality has been committed by the learned Trial Court.

11. Therefore, the petition sans merits, deserves to be and is hereby dismissed.

                       (PRAKASH SHRIVASTAVA)                                  (VIRENDER SINGH)
                                 JUDGE                                               JUDGE

      vivek

Digitally signed by VIVEK KUMAR TRIPATHI
Date: 2021.08.17 11:27:39 +05'30'