Madhya Pradesh High Court
Vicky @ Vishal @ Kaidi vs The State Of Madhya Pradesh on 10 November, 2021
Author: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
Cr. R. No. 2682 of 2021
(Vicky @ Vishal @ Kaidi Vs. State of M.P. )
Jabalpur, Dated : 10.11.2021
Shri D.K. Singrore, learned counsel for the applicant.
Shri Prashant Mishra, learned Panel Lawyer for the
respondents/State.
With the consent of learned counsel for the parties, the matter is
finally heard.
The present criminal revision under Section 397/401 of Cr.P.C. has
been filed challenging the order dated 11.102021 passed by the Special
judge of N.D.P.S. in Sessions Case No. 09/2018, whereby the application
filed under Section 311 of Cr.P.C. for recalling the witness no. 9 for
exhibiting a document has been allowed.
It is submitted that the aforesaid order passed by the trial court is
per se illegal as there is no provision in Cr.P.C. for recalling of witness to
fill up the lacuna.
It is submitted that in pursuance to a criminal case registered
against the petitioner, after completion of investigation, the charge sheet
was filed and the matter was taken up for trial as Sessions Case No.
09/2018. The prosecution evidence was closed on 8.7.2021 and the
matter was fixed for accused statement on 26.7.2021. Accused
statement was recorded before the trial court and the matter was fixed
on 21.9.2021 for submitting the arguments. After hearing the final
arguments, the matter was fixed before the trial court for judgment on
4.10.2021. On 4.10.2021 the prosecution has filed an application under
Section 311 of Cr.P.C. for recalling a witness, PW-9, Ram Prasad for
exhibiting the document and the matter was adjourned for 7.10.2021
for submitting the reply. The reply was submitted and on arguments on
application under Section 311 of Cr.P.C. was heard and the trial court,
vide the impugned order has allowed the application filed by the
prosecution and has permitted the recalling of witness no. 9 for exhibiting
a document.
It is pointed out that such a practice is not permissible and
placing upon the judgment passed by this court in the case of M.P.
State Electricity Board Vs. M/s. Modern Plast, reported in (2017) 3,
M.P. W.N. 131 and has argued that such order could not have been
passed by the learned trial court as the same amounts to filling up the
lacuna, which was left by the prosecution. He has prayed for setting aside
the impugned order.
Per contra, counsel appearing for the State has vehemently
opposed the arguments and has contended that the provisions of
Section 311 of Cr.P.C. provides ample power to the learned trial court to
direct for recalling of witness or calling of any document at any stage of
the proceedings, if it comes to the conclusion that the same is a material
document or witness for just and proper disposal of the case.
He has drawn attention of this court to the provisions of Section
311 of Cr.P.C. which reads as under :-
311. Power to summon material witness, or
examine person present -Any Court may, at any stage
of any inquiry, trial or other proceeding 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.
From perusal of the aforesaid provisions, it is apparently clear that
the court is having ample powers to recall any witness at any stage of
the proceeding subject to the condition that court is satisfied that the
same is material for just and proper disposal of the case.
Heard the learned counsel for the parties and perused the record.
From perusal of the record, it is seen that the sessions trial was at
the final hearing stage and was posted for delivery of judgment. On that
that date, an application under Section 311 of Cr.P.C was filed for
recalling of material witness, PW-9. It is not disputed that the document
which was required to be exhibited is already a part of charge sheet and
it is a seizure document, which is being material document in the
present case. The seizure witness was required to be recalled for
getting the document exhibited.
The Hon'ble Supreme Court in the case of Shailendra Vs. State
of M.P., AIR 2002 SC has considered the similar aspect and has held
"that if there is any negligence, latches or mistakes by not examining a
material witness, the court's function is to render just decision by
examining such witnesses at any stage is not, in any way imposed".
After going through the provisions of Section 311 of Cr.P.C., it is also
seen that recalling of witness can be done at any stage of the proceedings,
if the trial court is of the opinion, that the same is just for proper disposal
of the case. In such circumstances, no illegality has been committed by
learned trial court in recalling the witness.
The revision sans merit and is hereby dismissed.
(VISHAL MISHRA)
JUDGE
bks
BASANT KUMAR
SHRIVAS
2021.11.11 18:34:34
+05'30'
