Deepak Malviya vs The State Of Madhya Pradesh
2023 Latest Caselaw 12896 MP

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                               ON THE 9 th OF AUGUST, 2023
                                          CRIMINAL REVISION No. 3533 of 2023

                           BETWEEN:-
                           1.    DEEPAK MALVIYA S/O SHRI GOKUL BALAI, AGED
                                 ABOUT 29 YEARS, OCCUPATION: LABOUR R/O
                                 GOPALPURA, HATPIPLYA, DISTRICT DEWAS
                                 (MADHYA PRADESH)

                           2.    RAVI MALVIYA S/O SHRI KAILASH BALAI, AGED
                                 ABOUT 20 YEARS, OCCUPATION: LABORER R/O
                                 GOPALPURA HATPIPLYA, DIST. DEWAS (MADHYA
                                 PRADESH)

                           3.    SHAHRUKH     MANSURI     S/O KAMARUDDIN
                                 MANSURI PINJARA, AGED ABOUT 19 YEARS,
                                 OCCUPATION: LABORER R/O BADSHAH COLONY,
                                 HATPIPLYA, DIST. DEWAS (MADHYA PRADESH)

                           4.    JAHIR MANSURI S/O KAMRUDDIN MANSURI
                                 PINJARA, AGED ABOUT 20 YEARS, OCCUPATION:
                                 LABORER R/O BADSHAH COLONY, HATPIPLYA,
                                 DIST. DEWAS (MADHYA PRADESH)

                                                                                     .....PETITIONERS
                           (BY SHRI SHYAMLAL PATIDAR - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH POLICE STATION HATPIPLYA,
                           DISTRICT DEWAS (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                           (BY MS. BHARTI LAKKAD - G.A.)

                                 This revision coming on for admission this day, th e court passed the
                           following:
                                                            ORDER

This is criminal revision under Section 397 read with Section 401 of Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 10-08-2023 17:14:05

Cr.P.C, being aggrieved by the order dated 14/7/2023 passed by IInd Upper Session Judge, Bagli, Dewas in Session Trial No.20/2018 whereby the application filed by the prosecution under Section 311 of Cr.P.C to recall the witnesses Rinkesh (PW-7) and Deepak (PW-8) has been allowed.

2. Counsel for the applicant challenges the aforesaid order mainly on the ground that both the witnesses were already examined in the Court and the prosecution has not ascribed any reason for recall of these witnesses. The trial Court has also erred while recalling the aforesaid witnesses when their statement has already been recorded and there is no reason ascribed for recalling of the witnesses. The police has filed supplementary challan alongwith the statement of

Rinkesh and Deepak and thereafter the application has been filed for recall of these witnesses.

3. Counsel for the State supports the impugned order and submits that since the investigating officer has not properly conducted the investigation and, therefore, the statements were not properly recorded under Section 161 of Cr.P.C and with the permission of the Superintendent of Police, supplementary challan has been filed. The mistake of the investigating officer or mere filing of supplementary challan cannot be a ground to recall the witnesses under the provisions of Section 311 of Cr.P.C which reads as under:-

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.

Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 10-08-2023 17:14:05

4. Upon bare perusal of the provisions of Section 311 of Cr.P.C it is manifest that the Court has been conferred power to summon any person as the witness or examine any person in attendance though not summoned as a witness to recall or examine any person already re-examined if his evidence appears to be essential to the just decision of the case. In the present case, the prosecution has failed to ascribe any reason that when once the statement of the witnesses were already recorded than what else has to be stated before the Court. The power under Section 311 of Cr.P.C cannot be exercised in routine manner. It is settled law that if the conditions under the Section 311 of Cr.P.C are satisfied, the Court can call the witnesses not only on motion of either prosecution or defence but also it can do so in its own motion. But the prerequisite is that the conditions of Section 311 of Cr.P.C has to be satisfied. The Court has failed to record reasons that why the evidence of these two witnesses is essential to just decision of this case. In this regard, reference may be made to the judgment passed by this Court in the case Hiralal vs. State of M.P. reported in (1997) 2 crime 634 (M.P.).

5. In view of the aforesaid, I find that the order impugned so far it relates to recall of the witness Rinkesh (PW -7) and Deepak (PW-8) under Section 311 of Cr.P.C is unsustainable. The Revision is allowed. The impugned order is set aside. It is made clear that the order is not set aside in respect of other

witnesses.

(VIJAY KUMAR SHUKLA) JUDGE Pramod

Signature Not Verified Signed by: PRAMOD KUSHWAHA Signing time: 10-08-2023 17:14:05