Rohit Rajpoot vs The State Of Madhya Pradesh
2023 Latest Caselaw 3018 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                              ON THE 20 th OF FEBRUARY, 2023
                                          MISC. CRIMINAL CASE No. 6627 of 2023

                           BETWEEN:-
                           ROHIT RAJPOOT S/O LATE MOHAN RAJPOOT, AGED
                           ABOUT   25  YEARS, OCCUPATION: PRIVATE JOB
                           SUBHASH NAGAR SHASTRI WARD POLICE STATION
                           MOTINAGAR (MADHYA PRADESH)

                                                                                           .....APPLICANT
                           (BY SHRI SAURABH SINGH THAKUR, ADVOCATE )

                           AND
                           THE STATE OF MADHYA PRADESH THROUGH POLICE
                           STATION MOTINAGAR SAGAR (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI A. K. PATHAK, GOVT. ADVOCATE)

                                 This application coming on for admission this day, the court passed the
                           following:
                                                              ORDER

Applicant has filed this petition under Section 482 CrPC, challenging

impugned order dated 13.1.2023 passed by 2nd Additional Sessions Judge, Sagar in Sessions Trial No.521/2021, by which his application for recalling and cross-examination of P.W-4 Abhishek Kesharwani, P.W-5 Manju Kesharwani and P.W-6 Anil Kesharwani was dismissed by the trial court.

2. Learned counsel for the applicant submitted that no question has been asked in cross-examination that injury which is found on body of deceased was infact from top to bottom. Bullet has travelled from upper part of body to lower

Signature Not Verified part. It is submitted that cross-examination of witnesses is necessary in the Signed by: MONSI M SIMON Signing time: 2/23/2023 12:12:29 PM

interest of justice.

3. Learned counsel for the applicant relied on judgment passed in case of Dinesh Kumar vs. State of M.P. reported in 1995(II) M.P.W.N (Note 73) wherein it has been held that discretion to recall witnesses should be examined judiciously. In said case witness was recalled as junior counsel could not cross- examine the witness in the case.

4. Learned counsel for the applicant also relied on judgment reported in 2007 (III) MPWN 89 (Iddar and others vs. Aabida and another. Relying on said judgment it is stated that there is no limitation with regard to stage or with regard to manner when court can recall a witness for re-examination.

Object of Section 311 CrPC, is that there may not be failure of justice on account of mistake of either party.

5. Paras 10 & 11 of the aforesaid judgment is quoted as under:-

"10. The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code: (a) to summon any one as a witness, or

(b) to examine any person present in Court, or (c) to recall and re- examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provison enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be Signature Not Verified Signed by: MONSI M SIMON Signing time: 2/23/2023 12:12:29 PM

otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage for which the powers of the Court should be exercised or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.

11. The object underlying section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the

accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In section 311 of the significant expression that occurs is “at stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that Signature Not Verified Signed by: MONSI M SIMON Signing time: 2/23/2023 12:12:29 PM

whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

6. Further reliance is placed on judgment of Apex Court in the case of Himanshu Singh Sabharwal vs. State of M.P. and others, AIR 2008 SC 1943. In said case it has been held that court may not be a mute spectator and recording machine. Court has to find out the truth in the case. There has to be fair hearing in the case and court has ample power under section 311 of the Code, to re-examine the witness in its discretion. However, note of caution is also placed in said judgment. Learned counsel for the applicant has also relied on judgment in the case of Natasha Singh vs. Central Bureau of Investigation (State), (2013) 5 SCC 741.

7. Learned Govt. Advocate appearing for the respondent/State opposed the said prayer. It is submitted that doctor was examined on 21.4.2022. Thereafter Abhishek was examined on 21.6.2022 and advocate for accused prayed for time to cross-examine the witness and thereafter Manju Kesharwani was examined on 22.8.2022 and cross-examination of both the witnesses were done after period of 4 months. In these circumstances it was held by the trial court that proper opportunity has been granted to counsel for cross- examination of said witnesses.

8. Heard the learned counsel for the parties.

9. On going through facts of the case it is clear that defence counsel had ample liberty to go through chief which has been recorded by the court and doctor was also examined in the case. Witnesses were cross-examined after Signature Not Verified Signed by: MONSI M SIMON Signing time: 2/23/2023 12:12:29 PM

period of four months. In view of same, defence counsel cannot be given opportunity to re-examine the witnesses only to plug the loopholes.

10. In view of aforesaid facts and circumstances of the case, petition, filed under section 482 CrPC, is dismissed.

(VISHAL DHAGAT) JUDGE mms

Signature Not Verified Signed by: MONSI M SIMON Signing time: 2/23/2023 12:12:29 PM