Jalam Singh Patel vs The State Of Madhya Pradesh
2021 Latest Caselaw 9033 MP

            THE HIGH COURT OF MADHYA PRADESH
              PRINCIPAL SEAT AT JABALPUR
              Hon'ble Shri Justice Rajendra Kumar Srivastava

                            M.Cr.C. No.49185/2021

                                Jalam Singh Patel
                                      Vs
                               The State of M.P.
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        Shri Manish Datt, learned Senior Advocate with Shri Pankaj

Dubey, counsel for the petitioner.

        Shri Satyapal Chadar, learned G.A. for the respondent/State.

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                                      ORDER

(21.12.2021)

The instant petition under section 482 of Cr.P.C., has

been filed by the petitioner seeking direction to the trial Court not to

consider Exhibit P-9 as part of the evidence for passing the final

judgment of Sessions Trial No. 2800/2015 (S.C.P.P.S 24/2018) and

quashing the order dated 14/03/2019 whereby the learned trial

Court has issued summon to the prosecution witnesses including Dr.

Prashant Bawankule. He also prays not to consider the statement of

Prashant Bawankule so far as it relates to Exhibit P-9 i.e. Medical

report of the complainant.

2. The matter in brief is that on the complainant of Govind

Ketle, police registered the case against the petitioner and other

M.Cr.C. No.49185/2021

persons for causing grievous hurt to the complainant and mischief

thereto. The police registered the case under Sections 323,

325,427, 201 and 34 of IPC. Thereafter, while framing the charge,

the learned trial Court also framed the charge of Section 307 and

307/34 of IPC against the accused person. The petitioner

challenged the said charge i.e. 307 IPC via filing Revision

Petition No. 46/2019 which was dismissed by this Court vide

order dated 20.03.2020. Subsequently, during trial on 01.02.2019,

the learned trial Court took the medical documents pertaining to

treatment of the complainant and the petitioner challenged the

same via filing M.Cr.C No. 14500/2019 which met the same fate

as that was also dismissed on 20.03.2020. Further, after exhibiting

medical report in question as Exhibit P-9, vide order dated

14.03.2019, the learned trial Court issued summon to witness

namely Dr. Prashant Bawankule, who is author of said medical

report. Dr. Prashant Bawankule appeared before the Court as PW-

11 and his statement has been recorded by the trial Court.

3. Submission of the learned Senior Counsel is that

practice adopted by the learned trial judge is contrary to law and

same ought not to have been done by him. He submits that under

the 'Code', there is certain procedure to take the documents in

evidence but the trial Court did no follow the same. In fact, the

M.Cr.C. No.49185/2021

police may produce such documents as an evidence under section

173(8) of Cr.P.C. by carrying out further investigation of the case.

He submits that in the absence of such procedure being followed,

the witness could not be permitted to directly produce additional

documents before the Sessions Court during the course of the

trial. On the said point, he also relied upon the pronouncement of

the Hon'ble Supreme Court in the case Smt. Dayamathi Bai Vs.

Sri K.M. Shaffi, reported in 2004 (7) SCC 107 as well

Bhagyashree Prashant Wasankar Vs. State of Maharastra, in

Writ Petition No. 688 of 2020 passed by High Court of

Bombay. He submits that the trial Court failed to appreciate the

said aspect in the present case. The act performed by the trial

Court has prejudiced the defence of the present petitioner. The

document of Exhibit P/9 is also doubtful. Further, the learned

Senior Counsel read the provision of Section 207 Cr.P.C. and

argued necessity of following thereof. He submits that Section

207 Cr.P.C. imposes an obligation on the investigating officer to

supply every material which prosecution wants to use against the

accused in trial. He submits that in the present case, the

prosecution has not complied with the provision of Section 207 of

Cr.P.C. In support of his contention, he relied upon the order

passed by Division Bench of this High Court in the case of

M.Cr.C. No.49185/2021

Central Bureau of Investigation (Vyapam Cases), Bhopal Vs.

Chandra Kant Mishra in Cr.R No. 3695-3696/2018 dated

06.03.2019. He further submits that Dr. Prashant Bawankule has

been illegally called as prosecution witness, hence, his testimony

should not be consider by the trial Court, mainly, it relates to

document of Exhibit P/9.

4. On the contrary, learned counsel for the State opposes

the instant petition submitting that most of the issues raised by the

petitioner, has already been decided by this Court and therefore,

no substance available for adjudication. He submits that while

passing the order dated 20.03.2020 in M.Cr.C No. 14500/2019,

this Court found that the document in question was taken on

record without any objection of the petitioner/accused and this

Court dismissed the petition filed by the petitioner. The instant

petition is also having same relief which was sought via filing

earlier petition i.e. M.Cr.C. No. 14500/2019. He submits that the

present petition is not entertainable in any manner. So far as

calling of witness Dr. Prashant Bawankule is concerned, he is

author of document in question, his statement is necessary to just

decision of the case. The trial Court is empowered to call him

even exercising suo-moto power of the Court. He prays for

rejection of this petition.

M.Cr.C. No.49185/2021

5. Heard.

6. Two issues are involved in the petitioner's case, first

the trial Court has wrongly taken the medical document without

being followed the due procedure of law especially compliance of

Section 207 of Cr.P.C, and another pertaining to summoning of

witness, namely, Dr. Prashant Bawankule as PW-11 is not

accordance with law.

7. The learned counsel for the parties apprised the Court

about passing of order dated 20.03.2020 in M.Cr.C. No.

14500/2019 and on perusal thereof, issue relating to accepting the

medical document (Ex. P/9) has already been settled. Re-

appreciation of said issue would amount to review of order dated

20.03.2020 passed in M.Cr.C. No. 14500/2019, which is not

permissible under the Criminal Law and hit by Section 362 of

Cr.P.C.

8. As far as issue pertaining to summoning of witness,

namely, Dr. Prashant Bawankule as PW-11 is concerned, it

appears from the case file that he is author of document in

question i.e Ex. P/9 and to prove the same, his testimony was

necessary to be recorded for just decision of the case. Under

Section 311 of Cr.P.C, the Court itself empowered to call the

witness whose testimony is necessary to just decision of the case,

M.Cr.C. No.49185/2021

even exercising its suo-moto power. However, the Court should

spell out the reasons specifically for exercising said power and

herein, prima facie, it appears that the Court did not do so, but in

my opinion such error would not vitiate the whole examination of

witness when the objection in this regard was not taken at the

relevant point of time, rather, the defence counsel performed

detailed cross examination upon the witness Dr. Prashant

Bawankule and it seems that when undesirable facts came out,

petitioner carried out this exercise. It would be appropriate to say

that the objection with regard to non-compliance of any provision

should be taken at the earlier stage and same would also depend

upon facts of each case. Law can not be enforced according to

whims and fancies of the petitioner.

9. In view of the whole facts and circumstances of the

case, I do not find any reason to exercise the inherent power of

this Court provided under Section 482 Cr.P.C. Consequently, the

instant petition is hereby dismissed.

(Rajendra Kumar Srivastava) Judge

sp by SAVITRI Digitally signed PATEL Date: 2021.12.21 16:02:31 +05'30'