Ratnesh Sahu vs The State Of M.P.
2022 Latest Caselaw 549 MP

          THE HIGH COURT OF MADHYA PRADESH

                Criminal Revision No.1979/2021
                 (Ramesh Sahu & Ors. v. State of M.P.)

Jabalpur, Dated : 12.01.2022
     Shri Sukhnandan Pandey, Advocate for the applicants.

     Shri Puneet Shroti, Panel Lawyer for the respondent/State.

Heard.

This criminal revision under Section 397/401 of Cr.P.C. has

been filed by the applicants assailing the order dated 30.07.2021

passed by learned Additional Sessions Judge, Deori, District

Sagar (M.P.) in pending Sessions Trial No.45/2019 arose out of

Crime No.157/2019.

By way of the impugned order, the accused/applicants'

application filed under Section 311 of Cr.P.C. for recalling of the

witness namely Ramkumari (PW1) for further cross-examination,

has been rejected.

Inevitably, the impugned order contains factual narration like

the matter has been settled between the parties by the dint of

compromise; maximum witnesses recorded have been declared

hostile and however, the witness namely Ramkumari (PW1),

mother of deceased has also been declared hostile but in her

examination, she has made certain aspersions that the husband

of deceased and other family members used to torment and

abuse the deceased and further that the deceased was being

asked to bring more money in dowry from her parents. The

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impugned order also bespeaks that while conducting

cross-examination, if the counsel appeared on behalf of the

accused persons did not ask certain important questions, it

would not be justifiable to recall the witness for further cross-

examination.

Shri Pandey, learned counsel appearing for the

applicants submits that if certain crucial and indispensable

questions relating to root of incident, have remained

unasked from Ram Kumari (PW1) though she has been

declared hostile, the aspersions made in her statement can

be used against the accused persons. He enthusiastically

submits that all other witnesses have been declared hostile

as not supported the case of prosecution, but just because

certain aspersions made in the statement of PW1, despite

the fact that the matter has been settled by way of

compromise, an adverse order can be passed by the trial

Court in absence of specific questions required to have been

asked. In the circumstance, learned counsel seeks for

interference of this Court.

Per contra, Shri Shroti, learned Panel Lawyer

appearing for the respondent-State submits that the order of

trial Court is specific inasmuch as it mentions that the

statement of Ramkumari (PW1) got recorded on 13.03.2020,

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but the application was moved after almost one year of

recording of the statement. Adding another reason to support

the impugned order, Shri Shroti submits that although two-

three counsel got changed by the applicants for defending

them, yet none of them could perceive this glitch and only

the recently engaged counsel noticed some shortcomings

and moved the application under Section 311 of Cr.P.C. In

such circumstances, the impugned order is impeccable and

the Court below has rightly rejected the application. He

further submits that cross-examination was done in detail,

therefore, no question arises to accord permission for

recalling the witness merely because earlier counsel had

missed certain relevant questions while cross-examining the

witness.

I have heard the submissions made by the learned

counsel for the parties and perused the case diary as also

the statement of Ramkumari (PW1) mother of deceased.

After scrutinizing each and every aspect of the matter,

I am of the opinion that the object for recalling the witness

and empowering the Court to make appropriate order, is a

complete discretionary power of the Court to be exercised

for meeting ends of justice taking note of facts and

circumstances of the case.

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From the statements of the witnesses recorded and

declared hostile, it infers that the parties have settled the

matter by way of compromise. The mother of deceased

Ramkumari (PW1) has also been declared hostile by the

prosecution, but still she made some aspersions which can

be used against the applicants, who are accused in the

matter and in cross-examination certain material questions

were left unasked. Though PW1 got recorded on 13.03.2020

but the matter has been settled between the parties

somewhere in the year 2021. It reflects from the order

passed by the Court below that the parties moved

application under Section 320(2) of Cr.P.C. which got

dismissed vide order dated 04.02.2021. Thus, I do find that

there is any delay in moving the application for recalling of

the witness.

The Supreme Court has consistently been dealing the

scope of recalling the witness by moving application under

Section 311 of Cr.P.C. and observed that it is nothing but a

discretionary power of the court and can be exercised by the

Court in aid of justice.

In re State (NCT of Delhi) v. Shiv Kumar Yadav and

another (2016) 2 SCC 402, the Supreme Court while

appreciating its various earlier decisions about dealing with

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the scope of Section 311 of Cr.P.C. for recalling the witness

under similar facts and situation as is involved in the present

case, has observed as under:-

"10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions.

11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case.

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12. In Rajaram case, the complainant was examined but he did not support the prosecution case. On account of subsequent events he changed his mind and applied for recall under Section 311 Cr.P.C. which was declined by the trial court but allowed by the High Court. This Court held such a course to be impermissible, it was observed :

"13. .. In order to appreciate the stand of the appellant it will be worthwhile to refer to Section 311 CrPC, as well as Section 138 of the Evidence Act. The same are extracted hereunder:

Section 311, Code of Criminal Procedure "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.

" * * * Section 138, Evidence Act "138. Order of examinations.--Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re- examined.

The examination and cross-examination must relate to relevant facts but the cross- examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination.--The re- examination shall be directed to the explanation of matters referred to in cross- examination; and if new matter is, by permission of the court, introduced in re-

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examination, the adverse party may further cross-examine upon that matter."

14. A conspicuous reading of Section 311 CrPC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re- examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not

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summoned as witness or to recall or re- examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re- examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution."

(emphasis in original)

13. After referring to the earlier decisions on the point, the Court culled out following principles to be borne in mind :

"17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?

17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

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17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of

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such a discretionary power, may lead to undesirable results.

17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

17.14. The power under Section 311 CrPC 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."

14. In Hoffman Andreas case, the counsel who was conducting the case was ill and died during the progress of the trial. The new counsel sought recall on the ground that the witnesses could not be cross-examined on account of illness of the counsel. This prayer was allowed in peculiar circumstances with the observation that normally a closed trial could not be reopened but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses. It was observed :

"6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new

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counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.""

Finally, the Supreme Court while summing-up the case,

has observed as under:-

"29. We may now sum up our reasons for disapproving the view of the High Court in the present case:

(i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross- examination. They were under no handicap;

(ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel;

(iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice;

(iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses;

(v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed;

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(vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial;

(vii) Mere change of counsel cannot be ground to recall the witnesses;

(viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled;

(ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings;

(x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted."

(emphasis supplied)

From the above enunciation of law, it is clear that mere

change of counsel cannot be a ground to recall the witness.

A detailed cross-examination was done by the counsel

appeared on behalf of the applicants and he had asked all

possible and plausible questions which could have been

asked. Merely because the applicants are discontent with

the cross-examination done by their previous counsel, the

witness cannot be recalled for further cross-examination.

Indeed, the trial Court has rightly rejected the application

saying that the witness was examined on 13.03.2020 and

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though declared hostile but even then immediately thereafter

no application for recalling of witness was moved. The

present applicants have thrice changed their counsel i.e. on

20.11.2019, 04.02.2021 and then on 27.03.2021. It indicates

the instability of the applicants in engaging the counsel

frequently. In such circumstances, the application for recall

of witness cannot be allowed for the reason that the earlier

counsel has not cross-examined the witness properly.

Supposedly, If that is allowed, then it would tantamount to

opening the can of worms and make the process endless,

possibly for the reason that new counsel may come and say

the earlier counsel did not cross-examine the witness

dexterously.

In view of the above, I find that the instant revision

petition is sans substance and the impugned order does not

suffer from any material irregularity and the discretion as has

been provided to the court under Section 311 of CrPC has

been exercised judiciously.

Accordingly, the criminal revision is dismissed.

(Sanjay Dwivedi) Judge

sudesh Digitally signed by SUDESH KUMAR SHUKLA

SUDESH KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=1d5e479f08e68eda8f9271dbbe2c4bc3916264aec736f7c

SHUKLA 5f5885257f5eeaeb7, pseudonym=70EE703D36E97ABB20BA3C79C921929E09400A16, serialNumber=7D462390C18350EF7C40811B12AB45D82AF12598 78762BAC356DCFA877F02654, cn=SUDESH KUMAR SHUKLA Date: 2022.01.14 17:33:35 +05'30'