Madhya Pradesh High Court
Akhilesh Vishwakarma vs The State Of Madhya Pradesh on 13 December, 2021
Author: Sanjay Dwivedi
1 MCRC-49105-2021
The High Court Of Madhya Pradesh
MCRC No. 49105 of 2021
(AKHILESH VISHWAKARMA Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 13-12-2021
Shri Tarun Sengar, learned counsel for the petitioner.
Shri Ajay Shukla, learned Panel Lawyer for the respondent/State.
The petitioner has filed this petition under Section 482 of Cr.P.C. for
setting aside the order passed by the Court below on 31.03.2021 in Sessions
Trial No. 33/2019 pending before Additional Sessions Judge, Deori, District
Sagar whereby the Court below has rejected the application filed by the
petitioner under Section 311 of Cr.P.C. for recalling of the witness, i.e.
Complainant-Damodar Vishwakarma (PW-3). The application has been
submitted by the petitioner/accused on 04.02.2020 and the same is available
on record as Annexure P/6. The reason has been assigned in the said
application in paragraph 3 as to why the cross examination of the complainant
(PW-3) is further required and as to what questions should have been asked
but those have been left by the earlier counsel and could not be asked. He
further submits that the case is fixed for recording the statement of defence
witnesses. He submits that if the petitioner/accused is not granted an
opportunity to re-examine the complainant (PW-3), this would amount to
depriving the petitioner to grant a proper opportunity to defend himself. He
has relied upon a decision reported in (2015) ILR (MP) 3084- parties being
Jaidev Vs. State of Madhya Pradesh wherein the High Court, relying upon
a Supreme Court decision in case of Hanuman Ram Vs. State of
Rajasthan (2008) 15 SCC 652 has allowed the application saying that in the
interest of justice or to give proper opportunity to defend the accused
himself, the power of Section 311 can be exercised and application for
recalling the witness can be allowed.
Shri Ajay Shukla, learned counsel appearing for the respondent/State
although has opposed the submission made by counsel for the petitioner and
relied upon an order passed by the Court below saying that the Court has
Signature Not Verified
SAN
Digitally signed by SATYA SAI RAO
Date: 2021.12.14 10:50:34 IST
2 MCRC-49105-2021
given proper reason for rejecting the application.
Considering the rival submissions of learned counsel for the parties and
perusal of the judgment relied by counsel for the petitioner and also taking
note of the reason mentioned in the application for recalling the witness
namely Damodar Vishwakarma (PW-3) to further cross examine him, I am
satisfied with the submission made by counsel for the petitioner. Accordingly,
the order dated 31.03.2021 passed by the Court below is set aside. The
application filed by the petitioner under Section 311 of Cr.P.C. is accordingly
allowed. However, trial Court is directed to give one last opportunity to the
petitioner/accused to cross examine the witness namely Damodar
Vishwakarma (PW-3) if he comes to the Court for further cross examination.
The trial Court may call the witness-Damodar Vishwakarma (PW-3) for
further cross examination and necessary proceeding be initiated by the Court
below without wasting any further time.
Counsel for the petitioner is also directed that in case the witness
namely Damodar Vishwakarma (PW-3) remains present in the Court, he has
to be cross-examined and no adjournment would be granted to the
petitioner/accused.
It is also directed that whatever cost incurred for calling the witness
again, the same shall be borne by the petitioner/accused only. It is for the trial
Court to determine as to what amount is required to be paid.
Petition is accordingly disposed of.
(SANJAY DWIVEDI)
JUDGE
rao
Signature Not Verified
SAN
Digitally signed by SATYA SAI RAO
Date: 2021.12.14 10:50:34 IST
