M.C. Tiwari vs The State Of Madhya Pradesh
2021 Latest Caselaw 1723 MP

                                                    M.Cr.C. No.14841/2021
                                   1


HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
                AT JABALPUR


 Case No.                           M.Cr.C. No.14841/2021
 Parties Name                            M.C. Tiwari
                                              vs.
                                         State of M.P.
 Date of Order             03/05/2021
 Bench Constituted         DivisionBench:
                           Justice Prakash Shrivastava
                           Justice Virender Singh
 Judgment delivered by     Justice Prakash Shrivastava
 Whether approved for      No
 reporting
 Name of counsels for      Shri Anil Khare, learned senior counsel
 parties                   with Shri Som Prakash Mishra,
                           Advocate for the petitioner.

                           Shri Abhijeet Awasthy, learned counsel
                           for the respondent.
 Law laid down                                  -
 Significant paragraph                          -
 numbers

                               ORDER

03.05.2021

Per: Prakash Shrivastava, J.

By this petition under Section 482 of the Cr.P.C., petitioner has challenged order of the trial court dated 05.03.2021 whereby the petitioner's application under Section 311 of the Cr.P.C. for recall of the witnesses PW/7 to PW/10 has been rejected.

2. The brief facts are that the petitioner is facing prosecution for offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and the trial is pending before the Special Judge (Prevention of Corruption Act) Panna. The incident had taken place in the year 2007 and after investigation challan was filed sometime in the year 2008-09.

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The statement of witnesses PW/7 and PW/10 were recorded in the year 2012. Thereafter, the petitioner had absconded and had again resurfaced on 19.02.2021 and then he had filed an application under Section 311 of the Cr.P.C. which has been rejected by the trial court.

3. Learned counsel appearing for the petitioner submits that the counsel who was appearing for the petitioner was not well and had subsequently died and that the petitioner could not engage another Advocate and no effective cross-examination of the witnesses could be done. He further submits that so far as the absence of the petitioner is concerned, the trial court while granting bail has duly considered the circumstances and the same also furnishes a ground for allowing the application for recall of the witnesses. In support of his submission, he has placed reliance upon the judgment of the Supreme Court in the matter of Manju Devi vs. State of Rajasthan and another, 2019 (6) SCC 203, Mannan Shaikh and others vs. State of West Bengal and another, 2014 (13) SCC 59, V.N. Patil Vs. K. Niranjan Kumar and Others, 2021 SCC OnLine SC 172 and has submitted that for fair trial opportunity to cross-examine the witnesses should be granted.

4. Learned counsel for the respondent has submitted that the trial court has rightly rejected the application and the application has been filed after inordinate delay and there is every possibility that witnesses have been won over in the meanwhile and that full opportunity was given to the petitioner to cross-examine the witnesses. In support of his submission, he has placed reliance M.Cr.C. No.14841/2021

upon the judgment of Supreme Court in the matter of Ratanlal vs. Prahlad Jat and others, 2017 (9) SCC 340.

5. We have heard the learned counsel for the parties and perused the record.

6. Section 311 of the Cr.P.C. gives discretion to trial court to summon/recall any witness if evidence appears to be essential to the just decision of the case. The parameter for exercise of discretion conferred under Section 311 of the Cr.P.C. have been set down in various judicial pronouncements. The discretionary power conferred under Section 311 of the Cr.P.C. has to be exercised judiciously for the reason stated by the Court and not arbitrarily or capriciously. While powers are required to be exercised only for strong and valid reason, with great caution and circumspection after taking into consideration the relevant facts and circumstances of the case. Court should refrain from exercising this power if it appears that the application has been filed as an abused of the process of law. The Supreme Court in the matter of Ratanlal(supra) has held thus:

"17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the M.Cr.C. No.14841/2021

discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order.

18. In Vijay Kumar v. State of U.P., (2011) 8 SCC 136, this Court while explaining scope and ambit of Section 311 has held as under:

"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of [CrPC] and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously."

19. In Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, this Court has considered the concept underlying under Section 311 as under:

"27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power M.Cr.C. No.14841/2021

on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

20. In State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402, it was held thus:

"... Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bonafide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bonafide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined."

21. The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan, (2007) 14 SCC 711, this Court has held as under:

"38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision pe-

M.Cr.C. No.14841/2021

tition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to con- tend that he, after a period of four years and that too after his examination-in-chief and cross-examination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dis- missed."

The judgment noted above clearly reveals that the delay in filing the application under Section 311 of the Cr.P.C. is an important aspect which needs to be properly explained by the applicant. In the matter of V.N. Patel (supra) also it has been reiterated that the power under Section 311 of the Cr.P.C. is to be exercised judiciously by observing that "wider the power, greater is the necessity of caution while exercise of the judicious discretion".

In the matter of Mannan Shaikh and others(supra), the same position has been reiterated by observing that -

"12. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the section uses the word "shall". It says that the court shall summon and examine or recall or re- examine any such person if his evidence appears to it to be essential to the just decision of the case. The words "essential to the just decision of the case" are the keywords. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide its exercise M.Cr.C. No.14841/2021

has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammelled and arbitrary but must be guided only by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill up the lacuna. Whether recall of a witness is for filling up of a lacuna or it is for just decision of a case depends on the facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine."

The above pronouncement makes it clear that this power cannot be invoked to permit a party to fill up the lacuna. In the matter of Manju Devi (supra), it has been held that the provision is intended to ensure that the record of the Court is kept straight and to clear any ambiguity as also to ensure that no prejudice is caused to anyone.

7. Having examined the present case in the light of above pronouncement, it is noticed that when PW/7, PW8, PW/9 and PW/10 were examined between 01.11.2012 to 03.11.2012. The trial court had given due opportunity to the petitioner to cross- examine the said witnesses and at that time the Advocate for the petitioner had expressed that he did not want to cross examine the witnesses. The record further reflects that between 07.02.2019 and 18.11.2011 the said witnesses were present on as many as 9 occasions i.e. on 07.02.2009, 03.03.2009, 04.05.2009, 06.06.2009, 01.10.2009, 18.03.2009, 11.5.2010, 28.04.2011 and 18.11.2011 but on these dates the petitioner had sought adjournment on the ground that his Advocate Shri Banga was not available, therefore, the statement of these witnesses could not be recorded. On 01.11.2012 when the witness was present again the M.Cr.C. No.14841/2021

same request was made, therefore, the trial court had taken note of the earlier adjournments and had noted that it would be unjust to recall the witness without examining them, therefore, the petitioner was given an option to appoint some other local Advocate but he had refused the same. The order-sheets of the trial court dated 01.11.2012, and 02.11.2012, reveal that the adjournments were sought on the ground that Advocate Shri Banga was not well. The trial court had taken note of earlier several adjournments on this ground and had given option to engage another Advocate and has even offered the appointment of Advocate through Legal Services Authority. The trial court had found that the petitioner was deliberately delaying the proceedings. In this background, the above witnesses were examined and the opportunity was given to the Advocate who was present on behalf of the petitioner in the Court to cross- examine them.

8. Record further reflects that petitioner had remained absconded with effect from 09.11.2012 for more than eight years and had again appeared before the trial court on 19.02.2021. Meanwhile, the petitioner was declared absconded and permanent perpetual warrant of arrest was issued on 18.12.2012. The trial court by order dated 19.02.2021 has granted bail to the petitioner taking note of his advance age and ailment and the fact that the offence is not punishable to life imprisonment. The order granting bail to the petitioner does not furnish any basis for allowing the application under Section 311 of the Cr.P.C.

9. The aforesaid chain of events clearly reveal that the petitioner's entire conduct was not bonafide and considering the M.Cr.C. No.14841/2021

above circumstances at this stage, when the matter is already reached at the final stage, there is no justification to allow the prayer for recall of the witnesses specially when a strong apprehension has been expressed by the counsel for the respondent that the witnesses have been won over in the meanwhile.

10. The impugned order passed by the trial court reveals that due reasons have been assigned by the trial court in rejecting the application under Section 311 of the Cr.P.C. On minute perusal of the order, we find that no error has been committed by the trial court in exercise of discretion while rejecting the application. Hence, no case for interference is made out. The petition is accordingly dismissed.

                             (PRAKASH SHRIVASTAVA)                   (VIRENDER SINGH)
                                   JUDGE                                  JUDGE

YS

Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2021.05.04 17:13:35 +05'30'