Chandra Mohan Sahu vs The State Of Madhya Pradesh
2021 Latest Caselaw 693 MP

1                                              M.Cr.C.No. 6580/2021

          HIGH COURT OF MADHYA PRADESH
                    BENCH AT GWALIOR


                        DIVISION BENCH
                   JUSTICE SHEEL NAGU &
                  JUSTICE ANAND PATHAK


                    M.Cr.C. No. 6580 of 2021
                     Chandra Mohan Sahu
                                Vs.
                            State of M.P.
===============================================
Shri Rajmani Bansal, learned counsel for the petitioner.
Shri Sushant Tiwari, learned Special Public Prosecutor for for the
respondents/Lokayukt.
===============================================
                           ORDER

               ( Passed on 15th     March, 2021)

Per Justice Pathak, J:-

The instant petition under Section 482 of Cr.P.C. has been

filed by the petitioner/accused taking exception to order dated

20/1/2021 passed by Special Judge (Prevention of Corruption)

Act, Vidisha in Special Case (Lokayukt) No. 5/17; whereby,

application filed by respondent/Lokayukt under Section 311 of

Cr.P.C. has been allowed.

2. Brief facts giving rise to the controversy are that

petitioner/accused is facing trial for alleged offence under Section

7 of Prevention of Corruption Act, 1988. During the course of

trial, statement of one Ashok Pachauri (PW/7) was recorded on

22/07/2019. It appears that after recording of statement of said

witness, one application under Section 311 of Cr.P.C. was filed

by respondent/prosecution for recalling of the witness on the

ground that said witness was a witness for trapping and thereafter

in other important proceedings including the seizure and he did

not support the story of prosecution and declared hostile,

therefore, certain documents were to be referred to him for

verification in the cross- examination by the prosecution.

3. Petitioner/accused opposed the prayer but the learned trial

Court allowed the said application preferred by respondent

-Lokayukt and recalled the said witness for further cross-

examination. Petitioner is aggrieved by said recalling of witness,

therefore, this petition has been preferred.

4. It is the submission of learned counsel for the petitioner that

for filling up the lacuna, the recalling of witness cannot be

allowed. Incompetency of lawyer is also no ground to recall such

witness. Learned counsel for the petitioner placed reliance over

the decisions of Apex Court in the matter of Rajaram Yadav Vs.

State of Bihar, AIR 2013 SC 3081, State of Haryana Vs. Ram

Nahar, 2016 CrLJ (SC) 865, Mannan SK & Ors. Vs. State of

West Bengal, 2014 CrLJ (SC) 4071 and State of NCT of Delhi

Vs. Shivkumar Yadav, (2016) 2 SCC 402.

5. On the other hand, learned counsel for the

respondent/Lokayukt opposed the prayer and submits that said

witness Ashok Pachauri (PW/7) was a witness at the time when

petitioner was trapped while taking bribe and thereafter he was

seizure witness also regarding certain documents and said

documents were to be put before the witness for verification,

therefore, it does not amount to filling up lacuna but to assist the

Court to arrive at just decision and the said recalling is in the

interest of justice. He relied upon decision of Hon'ble Apex Court

in the matter of Natasha Singh Vs. CBI (State), 2013 AIR SCW

3554 & Sister Mina Lalita Baruwa Vs. State of Orissa and

Ors., AIR 2014 SCW 14. He prayed for dismissal of the petition.

6. Heard.

7. It is a case, where, petitioner as accused is aggrieved by the

recalling of witness as per Section 311 of Cr.P.C. by the trial

Court. Section 311 of Cr.P.C. is reproduced hereinbelow for ready

reference:-

"311. Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceedings 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."

8. Perusal of the provision makes it clear that sufficient

discretion has been given to the trial Court to recall the witness in

the interest of justice and if it feels just and proper to recall the

witness for just decision of the case. The case pertains to

documents mainly and those documents are to be verified, through

the witness and to be shown to him during cross-examination. In

special fact situation, when he was material prosecution witness

and endorsed his signatures over several documents, but at the

same time, in the dock, he did not support the story of prosecution

in categorical terms but partly, therefore, if those documents are

placed before him for cross-examination then no prejudice would

be caused to the parties and rather it would facilitate the Court to

reach to a just decision. Accused and prosecution both are meant

to assist the Court by facilitating fair trial. No prejudice shall be

caused to the accused, if witness is recalled and is referred the

documents.

9. Evidence Act provides examination, cross-examination and

re-examination of witnesses and therefore, construing Section 311

Cr.P.C. in restricted sense would not be in the interest of justice. It

is true that change of counsel or some related flimsy pretext,

cannot be invoked by the parties to recall the witness. Similarly,

lacuna of a party cannot be filled by recalling the witness but at

the same time, looking to the intent of legislature and the reason

for which the witness was recalled in the present case persuades

this Court to affirm the order passed by trial Court rather than to

take a divergent view. Under extraordinary jurisdiction under

Section 482 of Cr.P.C, it appears that no case for interference is

made out. The judgments cited by learned counsel for the parties

also stress over discretionary power of trial Court in respect of

Section 311 of Cr.P.C. to reach to a just decision. Here trial Court

allowed the application in the interest of justice and to reach to a

just and fair decision.

10. Resultantly, petition sans merits and is hereby dismissed.

                                                        (Sheel Nagu)                               ( Anand Pathak)
                                                            Judge                                       Judge

             jps/-
JAI       Digitally signed by JAI PRAKASH SOLANKI
          DN: c=IN, o=HIGH COURT OF MADHYA
          PRADESH BENCH GWALIOR, ou=HIGH
          COURT OF MADHYA PRADESH BENCH

PRAKASH   GWALIOR, postalCode=474001,
          st=Madhya Pradesh,

2.5.4.20=287738d30aabaeda9b10cecdf17

SOLANKI 9cec865c7633f4cfb9e38ce14fcbb05b9522 a, cn=JAI PRAKASH SOLANKI Date: 2021.03.16 10:05:27 +05'30'