Madhya Pradesh High Court
Manoj Pandey vs The State Of Madhya Pradesh on 25 April, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 M.Cr.C-13288-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 25th OF APRIL, 2025
M.CR.C. No. 13288 of 2025
MANOJ PANDEY
Versus
STATE OF MADHYA PRADESH
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Appearance:
Shri Manish Tiwari - Advocate for the petitioner.
Shri Alok Agnihotri - Government Advocate for the respondent-State.
Shri D.K. Upadhyay - Advocate for the objector.
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ORDER
With the consent of counsel for the parties, the matter is finally
heard.
2. This petition has been filed under Section 528 of the Bharatiya
Nagrik Suraksha Sanhita, Adhiniyam, 2023 seeking quashing of order dated
11.03.2025 passed in S.T. No.308/2022 arising out of offence registered vide
FIR/Crime No.55/2022 at Police Station Kotwali, District Sagar, whereby an
application filed by the petitioner under Section 311 of Cr.P.C. has been
dismissed by the trial Court.
3. As per facts of the case, the petitioner has submitted an application
under Section 311 of Cr.P.C. for recalling the witnesses, who have already
been examined, i.e. PW-1, PW-2 and PW-3 on the ground that cross-
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examination of those witnesses was not properly done by the counsel which
got done as per the instructions issued to them by the complainant.
(3.1) As per the petitioner, a case has been registered against him under
Sections 419, 467, 468, 471, 420 and 120-B of IPC saying that he had
purchased a property by a sale-deed, in which, the actual owner of the property
was impersonated by other accused and even the witnesses identified the said
person to be the real owner, but, later on, a complaint was made to the police
about such fraud saying that the actual owner of the property was not traceable
and by impersonating him, some other person appeared before the registering
authority and got the sale-deed executed in favour of present petitioner.
4. Learned counsel for the petitioner submits that the witnesses have
been examined during trial and according to him, PW-1, PW-2 and PW-3 were
the counsel appeared on behalf of the seller and completed all requisite
formalities for getting the sale deed registered; the process writer and some
registrar who took part in the said proceeding and played some role therein
respectively, but according to him, in the cross-examination, proper questions
which could have been asked, were not asked by the counsel appeared on
behalf of the present petitioner/accused. According to him, those witnesses are
required to be recalled so that they may be properly cross-examined and even,
in the interest of justice and for adjudication case of case, they ought to have
been recalled by the Court. He has placed reliance upon the decisions of the
Supreme Court in case of The State represented by the Deputy
Superintendent of Police Vs. T.R.N. Seenivasagam passed in Criminal
Appeal Nos. 231-232 of 2021 and V.N. Patil Vs. K. Niranjan Kumar and
Others passed in Criminal Appeal No. 267 of 2021.
5. On the other hand, Shri Agnihotri, learned counsel appearing for the
respondent/State opposes the submissions made by counsel for the petitioner
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and submits that trial is virtually at the verge of its conclusion and in fact, all
the material witnesses have already been examined and statement of PW-1,
PW-2 and PW-3 got recorded long back and now at this stage, on the ground
that they have not been properly examined by the earlier counsel for defence,
the impugned order cannot be recalled and the trial Court has rightly rejected
the application because it cannot be made a ground for recalling the witnesses
and if the application is allowed, then this would frustrate the very purpose of
Section 311. In support of his contention, he has placed reliance upon a
judgment passed by the Supreme Court in case of Swapan Kumar
Chatterjee Vs. Central Bureau of Investigation (2019) 14 SCC 328.
6. Shri Upadhyay, learned counsel appearing for the objector has also
reiterated the submission made by counsel for the State and further added that
the complainant namely Manish Patel has also been examined and in his cross-
examination, which is running in almost 15 pages, no question was asked by
the counsel appeared on behalf of the accused so as to establish that everything
got done as per instructions of the complainant and he remained present in all
these proceedings. He submits that under such a circumstance, it can be easily
gathered that all these exercise are being done just to delay the proceeding,
which, cannot be permitted to be allowed.
7. I have heard the arguments advanced by learned counsel for the
parties and perused the record.
8. So far as the case on which learned counsel for the petitioner has
placed reliance i.e. T.R.N. Seenivasagan (supra) is concerned, the same is not
applicable in the present case for the reason that in the said case, the Court had
allowed the application considering the fact that the document produced by the
party at a later point of time and during the course of evidence, no opportunity
was granted to cross-examine the witness to ascertain the sanctity of the said
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document and, therefore, application for recall has been allowed, but here in
this case, the situation is altogether different.
9. Further, in case of V.N. Patil (supra), the Supreme Court has
observed that it is the discretionary power of the Court to see whether
exercising suo motu power of summoning the witness whose statement ought
to be recorded to sub-serve the cause of justice with the object of getting the
evidence in aid of a just decision and to uphold the truth but here in this case,
the Court has not exercised the suo motu power but decided the application
that too after considering in detail that the said application is not material and,
therefore, in the facts of the present case the analogy adopted by the Supreme
Court in case of V.N. Patil (supra) will not help the petitioner.
10. However, considering the legal position as has been laid down in
case of Swapan (supra) relied upon by counsel for the State, the Supreme
Court has considered the scope of exercising the power provided under
Section 311 of Cr.P.C. vis-a-viz the delay occurred in exercising the said
power and as such, observed in the following manner:-
"9. Section 311 of the Code of Criminal Procedure, 1973 (for short "the
Code") provides for the power of the court to summon material witness or
examination person present. It reads as follows:
"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."
10. The first part of this section which is permissive gives purely
discretionary authority to the criminal court and enables it at any stage of
inquiry, trial or other proceedings under the Code to act in one of the three
ways, namely, (i) to summon any person as a witness; or (ii) to examine any
person in attendance, though not summoned as a witness; or (iii) to recall
and re-examine any person already examined. The second part, which is
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mandatory, imposes an obligation on the court (i) to summon and examine or
(ii) to recall and re-examine any such person if his evidence appears to be
essential to the just decision of the case.
11. It is well settled that the power conferred under Section 311 should be
invoked by the court only to meet the ends of justice. The power is to be
exercised only for strong and valid reasons and it should be exercised with
great caution and circumspection. The court has vide power under this
section to even recall witnesses for re-examination or further examination,
necessary in the interest of justice, but the same has to be exercised after
taking into consideration the facts and circumstances of each case. The
power under this provision shall not be exercised if the court is of the view
that the application has been filed as an abuse of the process of law.
12. Where the prosecution evidence has been closed long back and the
reasons for non-examination of the witness earlier are not satisfactory, the
summoning of the witness at belated stage would cause great prejudice to the
accused and should not be allowed. Similarly, the court should not
encourage the filing of successive applications for recall of a witness under
this provision."
11. Likewise, the Supreme Court in case of Rajaram Prasad Yadav
Vs. State of Bihar and another (2013) 14 SCC 461 has considered the power
provided to the Court under Section 311 Cr.P.C. and laid down the criteria
under which the said power can be exercised. The observation of the Supreme
Court is as follows:-
"17. From a conspectus consideration of the above decisions, while dealing
with an application under Section 311 CrPC read along with Section 138 of
the Evidence Act, we feel the following principles will have to be borne in
mind by the courts:
17.1. Whether the court is right in thinking that the new evidence is needed
by it? Whether the evidence sought to be led in under Section 311 is noted
by the court for a just decision of a case?
17.2. The exercise of the widest discretionary power under Section 311
CrPC should ensure that the judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts, as thereby the ends of
justice would be defeated.
17.3. If evidence of any witness appears to the court to be essential to the
just decision of the case, it is the power of the court to summon and examine
or recall and re-examine any such person.
17.4. The exercise of power under Section 311 CrPC should be resorted to
only with the object of finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct decision of the case.
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17.5. The exercise of the said power cannot be dubbed as filling in a
lacuna in a prosecution case, unless the facts and circumstances of the
case make it apparent that the exercise of power by the court would
result in causing serious prejudice to the accused, resulting in
miscarriage of justice."
12. Considering the aforesaid so also the view taken by the Supreme
Court in case of State (NCT) of Delhi Vs. Shiv Kumar Yadav and another
(2016) 2 SCC 402, wherein it has been observed as to under what
circumstances, witnesses can be recalled by exercising the power provided
under Section 311 of Cr.P.C., I am of the opinion that mere
incompetence/change of counsel cannot be a ground for recalling the
witnesses. More so, it has also been observed by the Supreme Court that
recall is not a matter of course and discretion given to the Court in this regard
has to be exercised judiciously to prevent failure of justice. Under the
circumstances existing in the present case, I am not impressed with the
submissions so advanced by learned counsel for the petitioner for recalling the
witnesses and even on that sole ground, the impugned order passed by the trial
Court cannot be interfered with.
13. In view of the aforesaid discussion, the petition, being sans merit, is
hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
rao
SATYA SAI RAO
2025.04.28 19:33:24
+05'30'
