Laxmi Narayan Vishwakarma vs The State Of Madhya Pradesh Thr.
2022 Latest Caselaw 6446 MP

Citation : 2022 Latest Caselaw 6446 MP
Judgement Date : 29 April, 2022

Madhya Pradesh High Court

Laxmi Narayan Vishwakarma vs The State Of Madhya Pradesh Thr. on 29 April, 2022

Author: Gurpal Singh Ahluwalia

                          1
          THE HIGH COURT OF MADHYA PRADESH
                        CRR No. 2536/2021
         (LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)


Gwalior, Dated : 29-04-2022

      Shri S.K. Mishra, Counsel for applicant.

      Shri Sankalp Sharma, Counsel for respondent/Lokayukt.

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

been filed against the order dated 24.09.2021 passed by Special Judge,

Prevention of Corruption Act Vidisha, in SC Lok 06/2017 by which

the application filed by the applicant for summoning the defence

witnesses No.1 to 4 & 6 has been rejected on the ground that they are

the Government officials and in case if they are summoned then it will

hamper the Government work and the prayer for summoning

proprietor of Amit Hardware has been rejected on the ground that he

has already been examined as prosecution witness.

It is submitted by Counsel for applicant that applicant is facing

trial under the Prevention of Corruption Act and the case was fixed for

recording of defence evidence and he filed a list of witnesses along-

with the details of records which were sought to be proved by

examining those witnesses. However, the Trial Court has rejected the

application only on the ground that the witnesses mentioned at serial

No.1 i.e. Secretary, Gram Panchayat Ukayla, Serial No.2-Public

Information Officer, Janpad Panchayat Ganjbasoda, District Vidisha,

Serial No.3-CEO, Janpad Panchayat Ganjbasoda, District Vidisha,

Serial No.4-SHO, Police Station City Kotwali, Ganjbasoda, District

THE HIGH COURT OF MADHYA PRADESH CRR No. 2536/2021 (LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

Vidisha, and Serial No.6- the present Secretary of Gram Panchayat

Visdha, are the Government officials and in case if they are summoned

then it will hamper their official duties and the witness mentioned at

serial No.5 has already been examined as prosecution witness.

Heard learned Counsel for the parties.

The reason for declining the prayer to examine witnesses

mentioned at Serial No.1 to 4 & 6 cannot be a ground to deprive the

applicant from examining the witnesses in his defence.

Section 233 of Cr.P.C read as under :-

"233. Entering upon defence.-(1) Where the accused is not acquitted under section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."

From the plain reading of Section 233 (3) of Cr.P.C, it is clear

that application can be refused on the ground that it has been made for

purpose of vexation or delay or for defeating the ends of justice. The

prayer for summoning five witnesses mentioned as serial Nos. 1 to 4

& 6 has been rejected merely by mentioning that in case if they are

asked to appear before the Trial Court as a defence witness, then it

THE HIGH COURT OF MADHYA PRADESH CRR No. 2536/2021 (LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

would hamper their Government job.

However, it is fairly conceded by Shri Sankalp Sharma that the

prosecution also must have examined certain Government officials.

The reasoning which has been assigned by the Trial Court is

completely stranger to the provisions of Section 233 of Cr.P.C.

Therefore, the reasons assigned for rejecting the prayer for

examination of witnesses mentioned at serial No.1 to 4 & 6 cannot be

approved.

So far as the rejection of the prayer for summoning the

proprietor of Amit Hardware is concerned, it is submitted that the

prayer has been rejected only on the ground that proprietor of Amit

Hardware has already been examined as a prosecution witness and full

opportunity was granted to the applicant to cross examine him.

The Supreme Court in the case of State of M.P. Vs. Badri

Yadav and Another, reported in (2006) 9 SCC 549 has held as

under :-

"15. When such frivolous and vexatious petitions are filed, a judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18-12-1990, cross-examined and discharged. Thereafter, an application under Section 311 CrPC was rejected. They were recalled purportedly in exercise of power under sub-section (3) of Section 233 CrPC and examined as DW 1 and DW 2 on behalf of the accused on 17-7-1995. This was clearly for the purpose

THE HIGH COURT OF MADHYA PRADESH CRR No. 2536/2021 (LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

of defeating the ends of justice, which is not permissible under the law.

16. In Yakub Ismailbhai Patel v. State of Gujarat [(2004) 12 SCC 229 : 2004 SCC (Cri) Supp 196] in which one of us Dr.AR.Lakshmanan, J. was the author of the judgment, in somewhat similar case to the facts of the present case, it was held that once a witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in court on oath by filing affidavit stating that whatever he had deposed before court as PW was not true and was done so at the instance of the police. In that case the evidence of PW 1 was relied upon by the trial court and also by the High Court. He was examined by the prosecution as an eyewitness. He also identified the appellants and the co- accused in the court. After a long lapse of time he filed an affidavit stating that whatever he had stated before the court was not true and had done so at the instance of the police. In those facts and circumstances this Court in paras 38 and 39 at SCC pp. 240-41 held as under:

"38. Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before court as PW 1 was not true and it was so done at the instance of the police.

39. The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW 1 and filing of affidavit in court later, he was in jail in a narcotic case and that the accused persons were also fellow inmates there."

The proprietor of Amit Hardware has already been examined as

prosecution witness, therefore, no case is made out for summoning

him as a defence witness. Accordingly, prayer for summoning the

proprietor of Amit Hardware has rightly been rejected by the Trial

Court.

THE HIGH COURT OF MADHYA PRADESH CRR No. 2536/2021 (LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

Under these circumstances, this Court is of the considered

opinion that the order dated 24.09.2021 passed by Special Judge,

Prevention of Corruption Act Vidisha, in SC Lok 06/2017 cannot be

given the stamp of judicial approval in toto.

Accordingly, order dated dated 24.09.2021 passed by Special

Judge, Prevention of Corruption Act Vidisha, in SC Lok 06/2017 is