Madhya Pradesh High Court
Santosh Meghwal vs The State Of Madhya Pradesh on 1 May, 2023
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 1st OF MAY, 2023
CRIMINAL REVISION No. 1714 of 2023
BETWEEN:-
SANTOSH MEGHWAL S/O GANGARAM
MEGHWAL, AGED ABOUT 41 YEARS,
OCCUPATION: TEACHER, R/O VILLAGE
BHILAKHEDI SULTANIYA, CURRENTLY
RESIDING AT VILLAGE BADAGAON, P.S.
NALKHEDA, DISTRICT AGAR MALWA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI PRIYVRAT SINGH CHOUHAN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION NALKHEDA,
DISTRICT AGAR MALWA (MADHYA
PRADESH)
2. VICTIM X THROUGH P.S. NALHEDA
DISTRICT AGAR MALWA (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI KAPIL MAHANT - PANEL LAWYER FOR THE RESPONDENT
NO.1/STATE)
.............................................................................................................................................
This revision coming on for admission this day, the Court passed the
following:
ORDER
The applicant has preferred this revision under Section 397 of
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 5/2/2023
10:18:21 AM
Cr.P.C. being aggrieved by the order dated 31/03/2023 passed by the
learned Additional Session Judge, Susner, District Agar Malwa (M.P.) in
Sessions Trial No.12/2022, whereby an application preferred under Section
311 of Cr.P.C. by the applicant / accused for re cross-examination of the
prosecution witness (PW-1) has been dismissed.
02. The facts giving rise to the present revision are that on 10/08/2022
prosecutrix along with her father Shankarlal and her aunt (Bua) launched
an FIR at Police Station Nalkheda, Agar Malwa by stating that her date of
birth is 04/07/2005. The father of the prosecutrix and wife of the
applicant/accused namely Vishnu Bai have Rakhi relations for last ten
years. Vishnu Bai and her husband / present applicant often used to visited
the house of the prosecutrix and they used to talk on mobile phone. On
08/08/2022 at about 04:00 PM while the prosecutrix was going towards the
market, near Veterinary Hospital she met the applicant / accused, where
applicant with a wrong intention caught hold her left hand and started
harassing her. Upon this, the prosecutrix started screaming for help, then
the accused left her hand and allegedly threatened her by saying that if she
would disclose the incident to anyone, he will kill her. Accordingly,
offence has been registered.
03. After filing of the charge sheet, charges were framed by the trial
Court and applicant was put to trial. Prosecution has examined some
witnesses and case is fixed for examination of the remaining prosecution
witnesses.
04. Learned counsel for the applicant submits that after examination of
prosecutrix (PW-1), the applicant has filed an application under Section
311 of Cr.P.C. before the trial Court for summoning the prosecutrix (PW-1)
for further effective cross-examination, because at the earlier occasion
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 5/2/2023
10:18:21 AM
junior advocate could not done effective cross-examination of the
prosecutrix and statement of prosecutrix under Section 161 of Cr.P.C.
could not be exhibited. At the later stage, after examination of some other
witnesses, some new facts came to the knowledge of the applicant,
therefore, re-cross-examination of the prosecutrix is required for just and
proper for adjudication of the matter.
05. Learned counsel for the applicant further contended that the order of
the trial Court is contrary to law and facts available on record. As per the
law laid down by the apex Court in the case of V. N. Patil Vs. K. Niranjan
Kumar reported in (2021) 3 SCC 661, re-cross-examination of the witness
is essential for just disposal of the case, if there is a mistake in bringing
valuable evidence on record and there is ambiguity in the statement of the
witness, who has already been examined, which could have material
impact on the final outcome of the case. During the cross-examination of
the prosecutrix before the trial Court, her statement under Section 161 of
Cr.P.C. has not been marked as a defence exhibit. Hence, further cross-
examination on the above points is essential for defence of the accused.
06. Per contra, learned counsel for the respondent/State opposes the
prayer by submitting that the order passed by the trial Court is just and
proper and no interference is warranted.
07. Heard learned counsel for both the parties and perused the impugned
order as well as the documents filed by the parties.
08. Learned counsel for the applicant has placed reliance upon judgment
delivered by the Gauhati High Court in the case of Md. Abdul Matlib Vs.
State Of Assam, (1990) 2 Gau LR (NOC 23) 22 decided on 21
November, 1989, in paragraph No.13 has held as under:-
"13. On careful consideration of the submission, I think
the provisions of Section 293 are not controlled or regulated
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 5/2/2023
10:18:21 AM
by the provisions under Section 294 of the Code. It may be
noted that Section 293 was Section 510 in the old Code of
1898 and Section 294 has been inserted in the new Code
which came into force on 1-1-74. The provision of Section
293 of the Code provides for reading in evidence certain
documents which purport to be 'report' under the hand of a
Government scientific expert as enumerated in Sub-section
(4) which include Chemical Examiner or Assistant Examiner
to Government. The provisions of this section are intended to
save time and avoid needless examination of experts
mentioned therein, unless, of course, the Court found it
necessary to examine the expert or when the accused
requested for examination of the expert. In my opinion, if the
Court does not find it necessary to examine the Chemical
Examiner or any other expert mentioned in subsection (4) of
Section 293 and the accused also does not make any prayer
to summon and examine the expert the report can be used in
evidence without examination of the expert, the Chemical
Examiner in the instant case."
09. The Bombay High Court in the case of Dasu @ Dadasaheb
Sitaram Chavan and another Vs. The State of Maharashtra and
Bhagwan Shankar Desai Vs. The State of Maharashtra, 1995 (2) Bom
CR 168 decided on 08/03/1985 in paragraph No.31 has held as under:-
"31. It is true that when the report of the Chemical
Analyser was sought to be admitted on record the learned
Counsel for the accused No. 3, Mr. Nair, raised objection to
its admission on record. Beyond putting an objection for its
admission on record the learned Counsel has done nothing in
the matter. He never moved the trial Court to summon the
concerned Chemical Analyser. He also did not at any time
demonstrate in what respect the report was deficient and
necessitated the calling of the Chemical Analyser before
admitting it in evidence. In the absence of any request from
the learned Counsel for summoning the Chemical Analyser
and also in the absence of his showing in what respect the
report was deficient and needed further elucidation before
admitting it to evidence, in our opinion the learned trial
Judge was right in admitting the report of the Chemical
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 5/2/2023
10:18:21 AM
Analyser in evidence and in using it as evidence in this case."
10. The Bombay High Court again in the case of Navin Laxman
Tamboli vs The State Of Maharashtra And Anr. (W.P. No.4325/2018)
decided on 31 October, 2018, in paragraph Nos.3 and 4 has held as under:-
"3. The prosecution has moved an application under
Section 293 of the Code of Criminal Procedure, 1973 ("the
Cr.P.C.) for exhibiting the report of CFSL without examining
the forensic expert. The said application was opposed by the
petitioners/accused on the ground that they are challenging
the veracity in the said report and also the competence of the
forensic expert and, therefore, they requested that the
forensic expert is to be called as a witness and he is to be
available for cross-examination. The learned Judge by order
dated 8th August, 2018 allowed the application of
prosecution and rejected the prayer of the petitioners/
accused. Hence, these petitions.
4. The petitioners are facing trial mainly under the
Prevention of Corruption Act, 1988. The conversation is
disputed issue in the trial when voice sample was obtained by
the prosecution and it was sent for expert's opinion to CFSL.
CFSL has sent a report and the said report is taken on record
under Section 293 of the Cr.P.C. The objection of the
petitioners is that the said report is not to be exhibited when
formal proof of examination of expert is not sustainable in
view of under Section 293 of the Cr.P.C. Hence, a limited
challenge in these petitions is that the said expert whether to
be called as a Court witness under Section 311 of the Cr.P.C.
The report is exhibited by the trial Court."
11. In view of judgment of the Apex Court in Zahira Habibullah
Sheikh and Anr Vs. State of Gujarat and Others reported in (2006) 3
SCC 374, there is no difficulty to hold that the aforesaid section is in two
parts. In the first part, the word employed is "may", whereas second part
uses "shall". Consequently, the first part gives a discretion to the Court
whereas the second part is worded in a mandatory language, which
compels the Court to take steps if new evidence appears to it essential for
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 5/2/2023
10:18:21 AM
the just decision of the case.
12. Requirement under section 311 of the Cr.P.C has been put by the
legislature to ensure that there may not be any failure of justice on account
of mistake of either parties in bringing the valuable evidence on record or
leaving ambiguity on the statement of witness examined from either side.
The litmus test as laid down in Zahira Habibullah Sheikh (supra) is that
whether it is essential to the just decision of a case to summon a witness .
In no necessary terms, it was made clear by the Apex Court that in the facts
of each case it has to be determined by the Presiding Judge whether new
evidence is essential.
13. From perusal of the record, it appears that during the cross-
examination of the prosecutrix (PW-1) so many material questions
regarding the contradictions and omissions in the statement of the
prosecutrix with her earlier police statement under Section 161 of Cr.P.C.
has been put before the prosecutrix during her cross-examination but
exhibit could not be marked. The scope and object of the provision is to
enable the Court to determine the truth and to render a just decision after
discovering all relevant facts and obtaining proper proof of such facts, to
arrive at a just decision of the case. Power must be exercised judiciously
and not capriciously or arbitrarily. It is not a case of lacuna but a case of
oversight the question.
14. The trial Court has passed the impugned order without application of
mind and without assigning any appropriate reason. Therefore, the ground
of rejection of application under Section 311 of Cr.P.C. is bad in law. In
view of the above, this Court is of the considered view that one last
opportunity should be given to the applicant to cross-examine the
prosecutrix (PW-1).
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 5/2/2023
10:18:21 AM
15. Accordingly, present criminal revision is allowed and impugned
order dated 31/03/2023 passed by the trial Court is set aside. The trial
Court is directed to recall the prosecutrix (PW-1) and afford only one
opportunity to the applicant to further cross-examine the said witness. The
applicant is permitted to further cross-examine the said witness, subject to
deposit of cost of Rs.3,000/- by the applicant in the account of President
and Secretary, High Court Employees Union, High Court of Madhya
Pradesh, Bench at Indore (Account No.63006406008, Branch Code No.
30528, IFSC No. SBIN0030528, CIF No. 73003108919).
16. Let a copy of this order be forwarded to the concerned trial Court for
information and necessary compliance.
Certified copy as per rules.
(ANIL VERMA)
J U D G E
Tej
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 5/2/2023
10:18:21 AM
