Balveer Singh Tomar vs The State Of Madhya Pradesh
2022 Latest Caselaw 5983 MP

                               1
         THE HIGH COURT OF MADHYA PRADESH
                 Criminal Revision No.795/2022
        Balveer Singh Tomar and others Vs. State of M.P.

Gwalior, Dated:23/04/2022

      Shri Awadhesh Singh Bhadoriya, Counsel for the applicants.

      Ms. Kalpana Parmar, Counsel for the State.

      This Criminal Revision under Sections 397, 401 of Cr.P.C. has

been filed against the order dated 10/12/2021 passed by First

Additional Sessions Judge, Ambah, District Morena in ST

No.108/2016, by which the application filed by the applicants under

Section 311 of Cr.P.C. has been rejected.

2.    Challenging the order passed by the Court below, it is

submitted by the counsel for the applicants that Shri Awadhesh Singh

Bhadoriya was appearing as applicants' counsel before the Court

below and the case was fixed for examination of Ramdhyan Singh

Tomar, but the applicants were under an impression that he would not

come and accordingly, they did not inform their counsel, who is

practicing at Gwalior. At 1:30 PM Ramdhyan Singh Tomar all of a

sudden appeared and his evidence was recorded, however, the local

counsel did not contact the arguing counsel nor gave any information

to him. However, on 24/9/2021 when the arguing counsel attended

the case, then he found that the evidence of Ramdhyan Singh Tomar

was already recorded on 18/10/2019 and he was not cross-examined

and accordingly, he filed an application under Section 311 of Cr.P.C.

alongwith his affidavit, but the same has been rejected by the

impugned order. By referring to the judgments passed by the

Supreme Court in the case of P. Sanjeeva Rao Vs. The State of A.P.
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                THE HIGH COURT OF MADHYA PRADESH
                        Criminal Revision No.795/2022
               Balveer Singh Tomar and others Vs. State of M.P.

reported in 2012 (3) Crimes 64 (SC), Sudevanand Vs. State

Through Central Bureau of Investigation reported in (2012) 3

SCC 387, Natasha Singh Vs. Central Bureau of Investigation

(State) reported in (2013) 5 SCC 741, it is submitted by the counsel

for the applicants that where the examination of a witness is

necessary for just decision of the case, then the prayer for recall of

the witness can be allowed. The discretion lies with the Court and the

Court being the custodian of the justice dispensation system should

ensure that no injustice is caused to any of the party, including that of

the accused party.

3.           Per contra, the application is vehemently opposed by the

counsel for the State.

4.           The application, which was filed by the applicants under

Section 311 of Cr.P.C., reads as under:-

                   U;k;ky; ekuuh; izFke vfrfjDr l= U;k;k/kh'k egksn;
                              vEckg ftyk eqjSuk] e-iz-
     iz-Ø-      [email protected] ST

                                   e/;izns'k 'kklu                        -----------vfHk;kstu

                                         cuke

                                  cyohj flag rksej vkfn                 ---------vfHk;qDrx.k

                      vkonsu i= varxrZ /kkjk 311 naM izfØ;k lafgrk
        okLrs v-lk-3 jke/;ku flag rksej dks izfrijh{k.k gsrq vkgqr fd;s tkus ds laca/k esa

      ekuuh; U;k;ky;]
                       [email protected];qDrx.k dh vksj ls vkosnu i= fuEukuqlkj lknj
izLrqr gSa&
   1- ;gfd] mDr izdj.k es vfHk;qDrx.k dh vksj ls eq[; cgl djus okys vf/koDrk
Jh vo/ks'k flag HknkSfj;k gS] tksfd eq[; :i ls Xofky;j gkbZdksVZ eas izsfDVl djrs gS]
tcfd mDr izdj.k esa vfHk;qDrx.k dh vksj ls LFkkuh; vf/koDrk ds :i esa Jh
jke/kkj 'kekZ iSjoh djrs gSaA
                                   3
            THE HIGH COURT OF MADHYA PRADESH
                    Criminal Revision No.795/2022
           Balveer Singh Tomar and others Vs. State of M.P.

   2- -;gfd] fnukad 18-10-2019 dks vfHk;kstu }kjk mDr izdj.k esa v-lk-3 ds :i esa
jke/;ku flag rksej dk dFku djk;k x;k] mDr fnuakd dks mDr lk{kh ds ekuuh;
U;k;ky; esa mifLFkr gksus dh laHkkouk ugh Fkh] D;ksafd djhc 1%30 cts rd dksbZ xokg
ugh vk;k Fkk] blfy;s izkFkhZx.k dh vksj ls mDr laca/k esa vius vf/koDrk Jh vo/ks'k
flag HknkSfj;k dks lwfpr ugh fd;k x;k] ;dk;d yap le; ls FkksMk iwoZ mDr lk{kh
mifLFkr gqvk ftldh lwpuk vfHk;qDrx.k }kjk vius vf/koDrk Jh vo/ks'k flag
HknkSfj;k dks Qksu ij ugh nh tk ldh vkSj u gh LFkkuh; vf/koDrk Jh jkeknkl 'kekZ
}kjk mDr laca/k esa vf/kOkDrk Jh vo/ks'k flag HknkSfj;k ls dksbZ lykg elojk dj ik;sA
ftlds pyrs mDr lk{kh ds eq[; ijh{k.k mijkar fo}ku LFkkuh;               vf/koDrk Jh
jkek/kkj 'kekZ }kjk mDr lHkh ls fcuk ijh{k.k fd;s mDr lk{kh dks eqDr dj fn;k
x;kA
   3- ;gfd] mDr lk{kh dks mi;ksfxrk dks de vkadrs gq;s Hkwyo'k vfHk;qDrx.k rFkk
muds LFkkuh; vf/koDrk Jh jkeknkl 'kekZ }kjk mDr lk{kh ds ckjs esa eq[; vf/koDrk
Jh vo/ks'k flag HknkSfj;k dks dksbZ tkudkjh ugh nh xbZA

   4- ;gfd] izkFkhZx.k ds eq[; vf/koDrk Jh vo/sk'k flag HknkSfj;k foxr is'kh fnukad
24-09-2021

dks ekuuh; U;k;ky; esa mifLFkr gq;s rc muds }kjk mDr izdj.k dk voyksdu fd;k x;k rHkh mDr lk{kh ds dFku dh tkudkjh muds laKku esa vkbZA

5- ;gfd] mDr Lkk{kh e`frdk ds llqjky ds xkao dk gh fuoklh gS tgka ij e`frdk dks rFkkdfFkr :i ls izrkfMr djuk crk;k x;kA tksfd p'enhn lk{kh gS ftls ?kVuk ds ckjs esa lai.w kZ tkudjh gksuk laHko gS] tksfd izdj.k ds fof/k iw.kZ fujkdj.k ,oa U;k; ds mnns'; gsrq vR;ar vko';d gSA 6- ;gfd] mDr Hkwy ,oa foyac ds fy;s izkFkhZx.k ekuuh; U;k;ky; ls {kek ;kpuk djrs gS rFkk ekuuh; U;k;ky dks vk'olr djrs gS fd Hkfo"; esa vkSj vf/kd lrdZrk ds lkFk ekuuh; U;k;ky; ds le{k iSjoh dh tk;sxhA izdj.k ds rF; ,oa ifjfLFkfr;ksa dks n``f"Vxr j[krs gq, mDr lk{kh dks izzfrijh{k.k gsrq vkgqr fd;k tkuk U;k;fgr esa loZFkk mfpr ,oa vko';d gSA vr% fouez fuonsu gS fd izkFkhZx.k dk mDr vkosnu Lohdkj djrs gq;s v- lk-3 jke/;ku flag dks izfrijh{k.k gsrq vkgqr fd;s tkus dh d`ik djsaA

bfrfnukad%& 21-10-2021 fouez izkFkhZx.k cyohj flag rksej vkfn

-----vfHk;qDrx.k }kjk vfHkHkk"kd

vo/ks'k flag HknkSfj;k vf/koDrk

5. Thus, it was specifically pleaded by the applicants that there

was no possibility of appearance of Ramdhyan Singh Tomar on

18/10/2019. It is really surprising as to how accused persons were

aware of the fact that the prosecution witness may not appear.

Furthermore, when Ramdhyan Singh Tomar appeared before the Trial

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.795/2022 Balveer Singh Tomar and others Vs. State of M.P.

Court, he did not support the prosecution case. His evidence was

recorded in presence of counsel for the applicants, namely, Shri

Ramadhar Sharma, who did not cross-examine him. Although the

applicants have alleged against their local counsel Shri Ramadhar

Sharma that neither he informed the arguing counsel nor he consulted

him and he expressed that he does not wish to cross-examine him, but

the same cannot be accepted. In paragraphs 3 and 4 of the

application, it is pleaded that when Shri Awadhesh Singh Bhadoriya

attended the trial on 24/9/2021, only then he came to know about the

fact that Ramdhyan Singh Tomar was already examined and he was

not cross-examined by the local counsel. On one hand it is being

projected that Shri Awadhesh Singh Bhadoriya was representing the

applicants in the trial and on the other hand it is submitted that the

applicants never informed about the fact that Ramdhyan Singh Tomar

has already been examined.

6. Be that as it may.

7. It is true that the Court has a jurisdiction to exercise its power

under Section 311 of Cr.P.C. in case if it is of the view that the

examination of a witness is necessary for the just decision of the

case, however, the Court must refuse to exercise its power under

Section 311 of Cr.P.C. where the sole intention is to delay the

proceedings or to harass the prosecution witness.

8. At this stage, it is submitted by the counsel for the applicants

that the applicants are ready and willing to pay the cost as well as to

THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.795/2022 Balveer Singh Tomar and others Vs. State of M.P.

compensate the witness, but their valuable rights may be protected.

9. Considered the submissions made by the counsel for the

applicants.

10. The trial of an accused cannot be hampered by recalling a

witness just for the satisfaction of the accused persons. It is not the

case of the applicants that Shri Ramadhar Sharma was not present on

the date of examination of Ramdhyan Singh Tomar (PW-3). If the

applicants are of the view that Shri Ramadhar Sharma is guilty of

misconduct by not cross-examining the witness, then they should

have approached the Bar Council for redressal of their grievance as

well as to show their bonafides. They have not approached the Bar

Council against Shri Ramadhar Sharma, which clearly indicates that

their submission that Shri Ramadhar Sharma did not cross-examine

the witness without realizing the seriousness of the witness is nothing

but an afterthought. Under these circumstances, no case is made out

for interference in the matter.

11. Accordingly, the order dated 10/12/2021 passed by First

Additional Sessions Judge, Ambah, District Morena in ST

No.108/2016 is hereby affirmed.

12. The Revision fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun*