Madhya Pradesh High Court
Geeta Bai vs The State Of Madhya Pradesh on 20 March, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 20th OF MARCH, 2023
MISC. CRIMINAL CASE No. 9702 of 2023
BETWEEN:-
GEETA BAI W/O KOMAL SINGH, AGED
ABOUT 32 YEARS, OCCUPATION: LABOUR
RESIDENT OF VILLAGE SAADPUR
1. ( INCORRECT MENTIONED AS SAJAPUR)
POLICE CHWOKI SAADPUR POLICE
STATION RAJPURA, DISTRICT DAMOH
(MADHYA PRADESH)
RAM SINGH @ PINTU S/O GULAB SINGH
LODHI, AGED ABOUT 23 YEARS,
OCCUPATION: LABOUR RESIDENT OF
2. VILLAGE SAADPUR (INCORRECT
MENTIONED AS SAJPUR) POLICE CHOWKI
SAADPUR POLICE STATION RAJPURA
DISTRICT (MADHYA PRADESH)
JAHAR SINGH S/O GULAB SINGH, AGED
ABOUT 26 YEARS, OCCUPATION: LABOUR
RESIDENT OF VILLAGE SAADPUR
3. ( INCORRECT MENTIONED AS SAJAPUR)
POLICE CHWOKI SAADPUR POLICE
STATION RAJPURA, DISTRICT DAMOH
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI MADAN SINGH -ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION RAJPURA
DISTRICT DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI JUBIN PRASAD - PANEL LAWYER FOR STATE )
This application coming on for admission this day, the court passed the following:
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
2
ORDER
This application under section 482 of the Cr.P.C has been filed against
the order dated 26.12.2022 and 13.02.2023 passed by the IInd Additional
Sessions Judge, Hatta, District Damoh (M.P) in Session Trial No.57/2017. By
order dated 26.12.2022, the application for summoning an Officer from the
Electricity Board to prove the load shedding from 7.00 to 7.45 PM has been
rejected and by order dated 13.02.2023, an application for recall of the defence
witnesses has been rejected.
2. The facts necessary for disposal of the present application in short
are that on 04.07.2017 at about 11.55 PM the complainant Raghuveer Prasad
gave a margh intimation to the effect that on 04.07.2017 at about 9.00 PM one
Kallu Garg informed the complainant that quarrel of Shreeram Pyasi is going on
near the shop of Bhagirath Chourasiya. When the complainant reached on the
spot, he saw that his brother Shreeram Pyasi was lying in an injured condition
and had incised wound on right side of his skull, legs, thigh etc. 108 Ambulance
was called and he was taken to the Government Hospital, Batiyagarh, where the
deceased was declared dead by the doctor.
3. By referring to the marg intimation, it is submitted by the counsel
for the applicant that initially in the marg intimation, the time of the incident
was mentioned differently, but thereafter by over writing on the same, it was
made 8.45 PM. There was the load shedding from 7.00 to 7.45 PM and
accordingly, the applicant has obtained a certificate in this regard from the office
of Junior Engineer, Madhya Pradesh Poorv Kshetriya Vidhyut Vitran Company,
Batiyagarh District Damoh on 14.05.2018. The prosecution closed its evidence
on 22.11.2022. On 10.12.2022, the applicant examined 5 defence witnesses. On
10.12.2022, the applicant filed an application for recall of the defence witnesses
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
and the said application has been decided by order dated 13.02.2022. It is further
submitted that applicant also filed an application for summoning the Officer of
the Electricity Board to prove that there was a load shedding on 04.07.2017 at
about 7.00 to 7.45 PM. However, by order dated 26.12.2022 the said application
has also been rejected.
4. Order dated 26.12.2022 :-
By this order the application filed by the applicant for summoning the
Engineer from the Electricity Department has been rejected. The application has
been rejected mainly on the following grounds:-
(a) The Session trial is of the year 2017 and is more than 5 years old
and on 6 occasions i.e 25.09.2018, 17.12.2019, 08.12.2021, 30.04.2022,
03.11.2022 and 20.11.2022, the defense had taken time to cross examine the
witnesses on account of non-availability of their counsel and therefore, it was
held that delay has been occasioned in disposal of the suit.
(b) Further more one of the accused Mahendra had expired and 3 to 4
opportunities were given to the prosecution to produce the verification report.
(c) The dates were given by the Court as per convenience of the
parties, but now as the case is in the list of 25 oldest cases, therefore long dates
cannot be given.
(d) The affidavit filed by Jahar Singh in support of the application for
summoning Engineer from Electricity Department is not clear and only photo
copy of the information given by the Department has been filed. The witness
has stated that he is not in possession of the original as the same has been filed
in some other case.
(e) From the photocopy of the information dated 14.05.2018, it is clear
that there was load shedding from 7.00 to 7.45 PM, whereas the incident has
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
taken place approximately at about 8.45 PM, therefore the period of load
shedding is different from the period of incident.
5. So far as the delay in trial is concerned, the trial court has tried to
put the entire blame on the defence by saying that on 6 occasions the cross
examination of the witnesses was deferred at their request and the dates were
given as per convenience of the parties. It is true that the trial court had
accommodated the defence but at the same time, the trial court should have
reflected each and every adjournment which was taken by the prosecution. The
trial court order is completely silent as to whether the case was ever adjourned
by the reason of non-appearance of the prosecution witnesses ? The incident is
of the year 04.07.2017, whereas the prosecution closed its evidence on
22.11.2022. The date of filing of the charge sheet is not clear. Why the
prosecution took 5 years to close its evidence has not been clearly mentioned in
the impugned order.
6. Why the trial court was giving long dates is also beyond
understanding. Be that whatever it may.
7. The crux of the matter is that the prosecution closed its evidence on
22.11.2022 and 5 defence witnesses were examined on 10.12.2022.
8. So far as difference in the timing of the load shedding and the
incident is concerned, by referring to the marg intimation, Shri Madan Singh,
submitted that there is an over writing on the time of the incident. In the marg
intimation initially the time of the incident was different, which was
subsequently changed by over writing on the same.
9. Under these circumstances, the certificate of load shedding assumes
importance because it is for the trial court to decide as to whether the incident
took place between 7.00 to 7.45 PM or at 8.45 as pleaded by the prosecution.
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
This Court of the considered opinion that the trial court will also be required to
decide about the correct timing of the incident and thereafter the trial court will
be in a better position to consider as to whether there was any load shedding at
the time of the incident or not ? Under these circumstances, the certificate of
load shedding is essential for just decision of the case.
10. Thus, the trial court should not have rejected the application of the
applicant to summon the Engineer from the Madhya Pradesh Poorv Kshetriya
Vidhyut Vitran Company, Batiyagarh District Damoh along with original record
to prove the factum of the load shedding from 7.00 to 7.45 PM. According the
order dated 26.12.2022 cannot be given the stamp of approval.
11. Order dated 13.02.2023:-
The applicants have filed an application for recalling all the defence
witnesses, who were are examined on 10.12.22, i.e total 5 witnesses in number.
The prayer of the applicant is that all 5 witnesses, who have been examined and
cross examined by the prosecution and the court on 10.12.2022 be cancelled and
they be recalled.
12. The contention of the counsel for the applicant is that defence
witnesses were mostly cross examined by the court and the cross examination
continued upto 9.30 PM.
13. Section 165 of the Evidence Act reads as under:-
"65. Judge's power to put questions or order
production.--The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he
pleases, in any form, at any time, of any witness, or of the
parties, about any fact relevant or irrelevant; and may
order the production of any document or thing; and neither
the parties nor their agents shall be entitled to make any
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon any
answer given in reply to any such question: Provided that
the Judgment must be based upon facts declared by this
Act to be relevant, and duly proved: Provided also that this
section shall not authorize any Judge to compel any
witness to answer any question, or to produce any
document which such witness would be entitled to refuse
to answer or produce under sections 121 to 131, both
inclusive, if the questions were asked or the documents
were called for by the adverse party; nor shall the Judge
ask any question which it would be improper for any other
person to ask under section 148 or 149; nor shall he
dispense with primary evidence of any document, except
in the cases herein before excepted."
14. From the plain reading of this section, it is clear that the Judge in order to
discover or to obtain proper proof of relevant facts, can always ask any question
he pleases, in any form, at any time, of any witness, or of the parties, about any
fact relevant or irrelevant; and neither the parties nor their agents shall be
entitled to make any objection to any such question or order, and shall not be
entitled to cross examine any witness upon any answer given in reply to any
such question, without seeking leave of the Court.
15. Thus, the contention of the applicant that the defence witnesses
were cross examined by the court cannot be accepted. Even otherwise, this
argument of the applicant has already been dealt with by this Court by order
dated 16.02.2023 in M.Cr.C No. 6626 of 2023 by holding as under:-
"9. Thus, it is clear that the trial court is not expected to act
as a silent spectator. The Supreme Court in the case of
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
Varsha Garg Vs. State of M.P. by judgment dated 8.8.2022
passed in Criminal Case No.1021/2022, Zahira Habibullah
H.Sheikh Vs. State of Gujarat, (2004)4 SCC 158, Munnu
Sharma V. State (N.C.T. of Delhi), (2010)6 SCC 1,
Mohanlal Shamji Soni Vs. Union of India and others,
reported in 1991 Supp (1) SCC 271 and Rajendra Prasad
Vs. Narcotic Cell, (1999)6 SCC 110, has held that a criminal
court cannot remain as a silent spectator. It has got a
participatory role to play and having been invested with
norms taken under section 311 as well as section 165 of the
Evidence Act, the trial court must rise to the occasion in
public interest. Further more, it is clear from section 165 of
Evidence Act that no-one can object to the question which are
put by the court, therefore, the objection by the applicants
that the defence witnesses were cross examined by the trial
court are baseless and hence, it is rejected.
16. Under these circumstances, this court is of the considered opinion
that the application filed by the applicant for recall of all defence witnesses and
to cancel their examination and cross examination as well as the documents
exhibited during their examination/cross examination be cancelled is
misconceived and cannot be allowed. Accordingly, the order dated 13.02.2023 is
hereby upheld.
17. Ex consequenti, this application under section 482 of Cr.P.C is
partly allowed. The order dated 26.12.2022 passed by the IInd Additional
Sessions Judge, Hatta, District Damoh (M.P) in Session Trial No.57/2017 is
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
hereby set aside, but the order dated 13.02.2023 is hereby affirmed. The trial
court is directed to proceed in accordance with law.
18. Since the trial has already reached to an advanced stage, therefore,
the trial court is directed to conclude the trial within a period of two months
from today.
(G.S. AHLUWALIA)
JUDGE
tarun
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 23-Mar-23
11:23:47 AM
