Madhya Pradesh High Court
Sudeep Guha vs The State Of Madhya Pradesh on 1 December, 2023
Author: Sheel Nagu
Bench: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 1 st OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 52872 of 2023
BETWEEN:-
SUDEEP GUHA S/O SHRI A.B. GUHA, AGED ABOUT 49
YEAR S , OCCUPATION: BANK MANAGER BANK OF
MAHARASHTRA B/O UGALI SEONI R/O 15, HOUSING
BOARD COLONY, IN FRONT OF NARAHI MATA
MANDIR, AKHBAR WARD, POLICE STATION SEONI
DISTRICT SEONI (MADHYA PRADESH)
.....APPLICANT
(BY SHRI VASANT RONALD DANIEL AND MS. SHAIFALI SARAF -
ADVOCATES)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION UGALI DISTRICT SEONI
(MADHYA PRADESH)
2. STATION HOUSE OFFICER PS UGALI SEONI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRAMOD KUMAR PANDEY - GOVERNMENT ADVOCATE)
This application coming on for admission this day, Justice Sheel Nagu
passed the following:
ORDER
Inherent powers of this Court u/S.482 of Cr.P.C. are invoked to assail
the interlocutory order dated 19.09.2023 passed in Case No.SC LOK/1/2019 by
Special Judge, Prevention of Corruption Act, District Seoni whereby an
application u/S.311 of Cr.P.C. preferred by the prosecution for calling
Investigating Officer (who had earlier been given up by the prosecution) to be
examined, has been allowed.
2. Learned counsel for rival parties are heard on the question so also final
disposal.
3. Learned counsel for petitioner, Shri Vasant Daniel with Ms. Shaifali
Saraf by relying upon decisions of Apex Court in Rohtash Kumar vs. State of
Haryana (2013) 14 SCC 434 (Para 14) and Swapan Kumar Chatterjee vs.
Central Bureau of Investigation (2019) 14 SCC 328 (Para 12 & 13)
submits that Investigating Officer Shri Abhilash Dharu was an enlisted
prosecution witness and yet was given up by the Public Prosecutor. Thereafter
trial proceeded and the entire evidence of prosecution was recorded, followed
by recording of statement of accused/petitioner u/S.313 of Cr.P.C. The trial is
now fixed for adducing of defence witness. In this factual background, it is
urged that recording of statement of I.O., who had earlier been given up by the
prosecution, would prejudice the case of petitioner/accused. The aforesaid
decisions of Apex Court are relied upon for the said purpose.
4. After hearing learned counsel for petitioner, this Court is of the
considered that no case for interference is made out in the inherent jurisdiction
u/S.482 of Cr.P.C. for the reasons infra:-
(i) The decision in Rohtash (supra) reveals that the same was against
judgment of conviction and sentence u/S.302 of IPC and other peripheral
offences. In the said decision of Rohtash (supra), the Apex Court referring to
the earlier decision rendered in Mohanlal Shamji vs. Union of India &
Another AIR 1991 SC 1346 emphasized that Trial Court is not empowered
under the Code to compel the prosecution or defence to examine any particular
witness and if either of the parties consciously withhold any evidence, which
could be produced, then the Court can very well draw presumption in terms of
Section 114 of Evidence Act.
This Court is afraid that said decision in Rohtash (supra) is of no
assistance to the petitioner since it was not a case pertaining to scope and ambit
of powers u/S.311 of Cr.P.C. but merely laid down general proposition, which
can be applied for and against, depending upon facts and circumstances in each
case.
(ii) As regards Swapan Kumar Chatterjee (supra) which deals with
provisions of Section 311 of Cr.P.C., the Apex Court analyzed the sweep of
Section 311 of Cr.P.C. and laid down that power vested in the said provision is
to be exercised with care and circumspection depending upon facts and
circumstances in each case. This judgment of Apex Court also emphasized that
if evidence of prosecution has been closed long back and the reason for non
examination of witness (sought to be called u/S.311 of Cr.P.C.) is not
satisfactory, then summons to such witness at belated stage can cause prejudice
to the accused and should not be allowed.
In the instant case, the reason assigned by learned Trial Judge for calling
I.O. is that said I.O. is not only an important witness of the prosecution but also
that for extraneous reasons the I.O. had been given up by the prosecution.
Thus, the Trial Court in the interest of justice and to ensure that truth prevails,
passed impugned order calling I.O. to be examined and cross examined.
5. The Trial Court has exercised the power u/S.311 of Cr.P.C. for
justified reasons as assigned in the impugned order, which cannot be termed as
causing any prejudice to the petitioner/accused.
6. In view of above discussion, this Court does not find any failure of
justice and therefore question of invoking inherent powers u/S.482 of Cr.P.C.
does not arise.
7. Consequently, present petition stands dismissed.
(SHEEL NAGU) (DEVNARAYAN MISHRA)
JUDGE JUDGE
mohsin
Date: 2023.12.04 11:12:33 +05'30'
