Madhya Pradesh High Court
Dr. S.K. Chandaiya vs The State Of Madhya Pradesh on 12 November, 2021
Author: Vishal Dhagat
1 MCRC-46833-2021
The High Court Of Madhya Pradesh
MCRC No. 46833 of 2021
(DR. S.K. CHANDAIYA Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 12-11-2021
Shri Ayur Jain, learned counsel for the petitioner.
Shri Dilip Parihar, learned Panel Lawyer for the respondent/State.
Petitioner has filed this petition under Section 482 of Code of Criminal
Procedure Code, 1973 assailing the order dated 03.07.2021 passed by first
Additional Sessions Judge, Hoshangabad (M.P.). By impugned order, learned
Sessions Judge has dismissed the application filed by applicant under Section
311 read with Section 294, 243 and 91 of Code of Criminal Procedure.
Counsel appearing for the petitioner submitted that petitioner had filed
an application for recalling of witness PW-5 Dr. Jaisani. His application was
rejected only on ground that application is filed to delay the trial. Counsel for
petitioner further submitted that party may not suffer because of mistake of
counsel. Counsel failed to exhibit certain documents while cross-examining
Dr. Jasani. There is no basis to show that application is filed to delay the trial.
It is submitted that second part of Section 311 is mandatory in nature and
therefore, Court ought to have allowed application under Section 311 of
Cr.P.C. as new evidence appears to be essential for just decision of the case.
Petitioner placed reliance on judgment reported in (1981) 2 SCC 788, Rafiq
a n d and another vs Munshilal and another and judgement reported in
(2008) 11 SCC 108, Godrej Pacific Tech. Limited vs Computer Joint
India Limited. Relying on said judgment, it was argued that cardinal rule in
law of evidence is that best available evidence should be brought before the
Court. Court can take note of the fact that best available evidence has not
been given and in such cases where Court considers that evidence is essential
for just decision of the case then witness may be mandatorily permitted to be
recalled and re-examined.
Learned Panel Lawyer appearing for the State supported the order
Signature Not
SAN
Verified passed by First Additional Sessions Judge and submitted that facts have been
Digitally signed by
VINOD KUMAR
TIWARI
Date: 2021.11.17
10:38:10 IST
2 MCRC-46833-2021
mentioned why it has been inferred that petitioner wants to delay the trial.
Court does not find it a fit case to recall the witness, therefore, mandatory
provision of Section 311 of Cr.P.C. is not available.
Heard the counsel for the petitioner as well as respondent/State.
Learned trial Court in its impugned order dated 03.07.2021 has
mentioned that prosecution evidence was closed on 11.12.2019. Accused did
not appear before the Court and arrest warrants were issued. Petitioner
appeared and case was again fixed for defence evidence on 24.01.2020. After
closing of defence evidence, petitioner had filed an application on 07.02.2020
for giving defence evidence. Dr. Jasani PW-5 was examined on 12.09.2018
and petitioner has filed application for re-examination after more than two
years. It was also observed that petitioner is a highly educated person and he
was continuously assisted by his counsel. In view of said circumstances, it
was held that application was filed only to delay the trial.
It is not the case of petitioner that petitioner was not having documents,
which he wants to be exhibited by PW-5. Petitioner was in possession of said
documents and only because Advocate did not get the same exhibited is not a
ground for recalling of witness. Neither prosecution nor defence can be
permitted to fill in the loopholes of the case with aid of Section 311 Cr.P.C.
Case laws cited by petitioner are of no help to petitioner as same are
distinguishable on facts.
In view of aforesaid circumstances, trial Court has rightly dismissed the
application filed by the petitioner. Petition is dismissed.
(VISHAL DHAGAT)
JUDGE
vkt
Signature
SAN Not
Verified
Digitally signed by
VINOD KUMAR
TIWARI
Date: 2021.11.17
10:38:10 IST
