Suresh @ Mintu Vishwakarma vs The State Of Madhya Pradesh
2022 Latest Caselaw 16567 MP

       IN THE HIGH COURT OF MADHYA PRADESH
                             AT JABALPUR
                               BEFORE
       HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                MISC. CRIMINAL CASE No.51709/2022
BETWEEN:-

SURESH @ MINTU VISHWAKARMA, S/O
SHRI   KHUSHILAL   VISHWAKARMA,
AGED ABOUT 41 YEARS, R/O: PATHAK
WARD, BINA, TEHSIL BINA, DISTRICT
SAGAR (MADHYA PRADESH)
                                               ......APPLICANT
(BY SHRI AMBUJ JAIN - ADVOCATE)


AND

1.   THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION BINA,
DISTRICT SAGAR (MADHYA PRADESH)

2.   AKANSHA JAIN, D/O SHRI RAKESH
KUMAR JAIN, AGED ABOUT 26 YEARS,
R/O PRATAP WARD, AGASAUD ROAD,
BINA, TEHSIL BINA, DISTRICT SAGAR
(MADHYA PRADESH)

                                               ...RESPONDENTS
(BY SHRI JITENDRA SINGH PARIHAR - PANEL LAWYER)
.........................................................................................................................................................
Reserved on : 06.12.2022
Pronounced on : 14.12.2022
.........................................................................................................................................................
       This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:

                                   ORDER

This petition under Section 482 of Cr.P.C is moved by the applicant Suresh @ Mintu Vishwakarma being aggrieved by the order dated 14.10.2022, passed by the 2nd Additional Sessions Judge, Bina, District Sagar in S.T.No.13/2019 (State of M.P. Vs. Suresh @ Mitthu Vishwakarma) under Section 376, 450 and 506 part(2) of IPC, whereby the application under Section 311 of Cr.P.C moved by the applicant/accused Suresh @ Mintu for recalling the prosecutrix (PW1) was rejected by the trial Court.

2. Learned counsel for the parties are heard.

3. On a perusal of the impugned order, it is revealed that an application under Section 311 of the Cr.P.C was moved on behalf of the accused for recalling prosecutrix (PW1) for further cross-examination on the ground that she could not be cross-examined fully. The aforesaid application was rejected by the learned trial Court vide impugned order dated 14.10.2022. Aggrieved with the impugned order, petitioner has filed this petition under Section 482 of the Cr.P.C.

4. Learned counsel for the petitioner has submitted that learned trial Court has dismissed his application without application of judicial mind on the grounds, firstly that lengthy cross-examination of prosecutrix (PW1) has already been done on behalf of the applicant/accused; secondly, questions have already been put through the cross-examination about abortion; thirdly, their chat on mobile and on the point of consensual relationship between the accused and prosecutrix. Hence, learned trial Court has dismissed the application.

5. Learned counsel for the applicant has further submitted that prosecutrix (PW1) is star witness. When she was cross-examined on 21.06.2019, Shri Quazi Altafuddin Abbasi, Advocate who had full knowledge of the case had gone out of town due to which she was cross- examined by Shri M.S. Abbasi, Advocate, but he could not put all the questions which were necessary to elicit the truth. Now, Shri Quazi Altafuddin Abbasi, Advocate wanted to make a lengthy and effective cross-examination of the prosecutrix. Therefore, it is necessary in the interest of justice that prosecutrix (PW1) be re-summoned for further cross-examination about the facts which could not be put inadvertently to her in her earlier cross-examination. Therefore, it is necessary to recall her for further cross-examination. Hence, he has prayed for quashment of the impugned order.

6. It is also submitted by learned counsel for the applicant that learned trial Court has not considered the fact that prosecutrix is still to be recalled for further cross-examination on the point of consent and about the fact that when she got pregnant her family members had full knowledge about her pregnancy and she has lodged false FIR under the pressure of the family. Questions have also to be put about messages sent by her to the accused. Hence, he has prayed that impugned order be set aside and trial Court be directed to recall the prosecutrix (PW1) for further cross-examination. To bolster his argument, learned counsel for the petitioner has relied on the order dated 27.10.2015, passed in Criminal Revision No.1237/2015 (Jaidev Vs. State of M.P.) No.1237/2015 by a coordinate bench of this Court and order dated 13.12.2021, passed in M.Cr.C.No.49105/2021 (Akhilesh Vishwakarma Vs. State of M.P.) and order dated 26.07.2022, passed in M.Cr.C.No.34741/2022 (Ashraf Vs. State of M.P.).

7. On the other hand, learned Panel Lawyer for the respondent/State has opposed the prayer made by learned counsel for the applicant. It is submitted that in the application under Section 311 of Cr.P.C, it is mentioned by the accused that questions about call and messages between accused and prosecutrix and demand of money by the prosecutrix from accused were put to prosecutrix but such questions could not be put in details. Likewise question regarding relationship being consensual in nature was not effectively put. It is submitted by learned Panel Lawyer that defence cannot be permitted to fill up the lacuna left in the cross- examination of the witness by recalling the witness for further cross- examination. It is also submitted by learned Panel Lawyer for the respondent/State that applicant/accused has not been successful to show as to why he be permitted to fill up the lacuna. Therefore, he has prayed for dismissal of the petition.

8. I have carefully considered the rival submissions made by learned counsel for the parties and have gone through the impugned order and material available on record.

9. As far as the order dated 27.10.2015 passed in Cr.R.No.1237/2015 is concerned that has no application in the facts of the present case as in that case accused were facing charges for commission of offence under Section 420, 468 and 471 of IPC and they were not cross-examined on some material aspect. As far as order dated 13.12.21, passed in M.Cr.C.49105/2021 is concerned, that was passed in light of the facts of the case and same has no application in the facts of the present case. In order dated 26.07.2022 passed in M.Cr.C.No.34741/2022, opportunity for further cross-examination was granted as in that case a different date of birth of the prosecutrix has surfaced. Thus, the facts of the above none of case was identical to the facts of the present case.

10. The nature and scope of the power exercised by the Court under Section 311 of Cr.P.C. was elaboratory considered in the case of Raja Ram Prasad Vs. State of Bihar and another, 2013(14) SCC 461 and it was held that the power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. There is no doubt in the legal position that Court has to bear in mind the essentiality of evidence for just decision of the case while deciding the application under Section 311 of Cr.P.C. as held by the Hon'ble Apex Court in catena of judgment and also the duration of a case cannot displace the specific requirements of the just decision after taking all the necessary material evidence on record. In the case of Soneram Rathore Vs. State of M.P., reported in 2015(2) MPLJ (Cri) 68, it has been held that in a case where application for recalling of prosecution witness had been filed on the ground that earlier counsel has not cross-examined witness properly and had not put some material questions cannot be ground to recall the witnesses already examined. Such application cannot be allowed for mere asking reasons and for reasons related to mere convenience. The Hon'ble Supreme Court in case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, reported in 2016(3) MPLJ (Cri.) SC 271 has held that discretion given to Court for recalling of witness has to be exercised judiciously to prevent failure of justice and not arbitrarily. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tengible reasons to show how fair trial suffered without recall.

11. On a perusal of the application filed by the applicant/accused before the trial Court under Section 311 of the Cr.P.C, it is apparent that in it no new questions have been proposed to be asked from prosecutrix (PW1). In impugned order learned trial Court has mentioned that all questions have already been put to witness in earlier cross-examination including consensual nature of relationship between prosecutrix and accused. Questions have already been put about the messages and chat between the accused and prosecutrix. It is settled position of law that help of Section 311 of Cr.P.C cannot be given to accused to fill up the loop holes. Mere submission that earlier counsel could not cross-examine the witnesses on particular points in an effective manner cannot be a ground to recall a witness as powers conferred under Section 311 of Cr.P.C can be invoked only in order to meet the ends of justice for strong and valid reasons, with great occasion of circumspection.

12. An application under Section 311 of Cr.P.C cannot be allowed to fill up the lacuna of prosecution or defence case. Unfair advantage cannot be given to any of the parties and no one can permitted to call the witnesses for further cross-examination without valid and strong reasons as to why his/her recalling is necessary for further cross-examination that too of a prosecutrix in case under Section 376 of IPC who has already been examined and cross-examined fully.

13. It is settled that an opportunity of fair trial has to be given to the accused but it should also be kept in mind that the interest of the victim and society at large should not get prejudiced. It is not the case of the petitioner that the counsel who had cross-examined the prosecutrix at length was not competent. Learned trial Court in the impugned order has noted that prosecutrix who is paralytic was subjected to a prolix cross- examination as her cross-examination runs from para 5 to para 19 and she was cross-examined on almost all the points. In such circumstances, no apparent fault is visible in the impugned order passed by the trial Court.

14. It is needless to say that the power conferred under Section 482 of the Cr.P.C has to be exercised sparingly only when there is apparent error or gross injustice would be caused in the view taken by the sub ordinate Court. In the case on hand, a fair opportunity was granted to the accused and prosecutrix was cross-examined at length by his counsel. Now, no opportunity can be given to the accused to meet out the loop holes in evidence by way of Section 311 of Cr.P.C which may cause prejudice to either of the parties.

15. In view of the above discussion, this Court does not find error in the impugned order and is not inclined to interfere with it. Accordingly, the application under Section 482 of Cr.P.C being devoid of merit is dismissed.

(DINESH KUMAR PALIWAL) JUDGE Jasleen

Digitally signed by JASLEEN SINGH SALUJA Date: 2022.12.15 12:29:54 +05'30'