Madhya Pradesh High Court
Nitesh Parasar vs The State Of Madhya Pradesh on 2 May, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:20952
1 MCRC-18494-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 2 nd OF MAY, 2025
MISC. CRIMINAL CASE No. 18494 of 2025
NITESH PARASAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri B.K.Shukla - Advocate for the petitioner.
Shri Jubin Prasad - Panel Lawyer for the respondents/State.
ORDER
This petition under Section 528 of BNSS has been filed by the petitioner
challenging the order dated 09.04.2025 passed by the learned Ist Additional
Sessions Judge, Bina District Sagar in S.T.No.60/2015 whereby the learned Court
has rejected the application under Section 311 of Cr.P.C. for summoning and
calling the witness Dr. Ashok Sharma who was examined in counter case
No.339/2014.
2. It is the case of the petitioner that an FIR has been registered for the offence
under Section 147, 148, 149, 323, 324, 341, 506 of Indian Penal Code at Crime
No.244/2014 at Police Station Bina and thereafter an offence under Section 326 of
I.PC. has been enhanced on the complaint made by Harishankar Patel. It is argued
that it is a case of free fight between the parties and against the complainant party
an FIR has been registered at Police Station Bina for the offence under Section
147, 148, 149, 323, 324, 506 of Indian Penal Code at Crime No.243/2014 and
subsequently increased to Section 307 and 302 of Indian Penal Code wherein,
Laxmi Narayan, Arvind Gabbu Prajapati, Lakhan and Harishankar are accused.
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The investigation was complete and charge sheet was filed before the Court and
the matter was taken up into Trial by the learned Trial Court. It is argued that in
the counter case Sessions Trial No.339/2014 Dr. Ashok Sharma was examined as
PW-4 who has done the postmortem of deceased Narayan Parashar. He is a
necessary witness to the case in hand, therefore, the petitioner filed an application
under Section 311 of Cr.P.C. before the learned Trial Court for summoning Dr.
Ashok Sharma pointing out that he is an important witness as he has carried out
the postmortem of deceased Narayan Parashar and he has given a postmortem
report which is not exhibited. His presence is required to get the postmortem
report exhibited in the matter in order to do complete justice in the matter. The
said application has been rejected by the learned Trial Court vide order dated
09.04.2025 on the ground that the case is at the defence stage and, therefore, the
petitioner cannot exhibit the said document.
3. Per contra, learned counsel for the respondent/State has vehemently
opposed the contentions raised by the petitioner and has supported the impugned
order passed by the learned Trial Court.
4. Heard the learned counsel for the parties and perused the record.
5. After conclusion of the defence evidence, the matter was listed for final
arguments and thereafter an application under Section 311 of Cr.P.C. was filed.
The petitioner has not taken any pains to file an application at an early stage for
summoning of the witness. Even otherwise the doctor who has conducted the
postmortem in a criminal case where the death has taken place is of no importance
in a case where no death has taken place. Two different FIRs have been registered.
It may be a case that injuries were inflicted to the petitioner also in a cross case but
the fact remains that Dr. Ashok Sharma has no role to play in the case of the
petitioner especially in the circumstances where no death has taken place. The
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petitioner has got ample opportunity to cross-examine Dr. Ashok Sharma in the
other case where he appeared as a witness. The learned Trial Court has rightly
considered all the aspects of the matter and has rejected the application. Counsel
appearing for the petitioner could not justify summoning of Dr. Ashok Sharma in
the present case i.e. Crime No.244/2014. He could not point out the prejudice
which is to be caused to him in case such doctor is not summoned for giving
evidence. Under these circumstances, no relief can be extended to the petitioner.
6. The Hon'ble Supreme Court in the case of Rajaram Prasad Yadav vs State
of Bihar reported in (2013) 14 SCC 461 has laid down the guidelines with respect
to dealing with an application under Section 311 of CrPC. The same reads as
under :
"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.
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.
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17.6. The wide discretionary power should be exercised judiciously
and not arbitrarily.
17.7. The court must satisfy itself that it was in every respect essential
to examine such a witness or to recall him for further examination in
order to arrive at a just decision of the case.
17.8. The object of Section 311 CrPC simultaneously imposes a duty
on the court to determine the truth and to render a just decision.
17.9. The court arrives at the conclusion that additional evidence is
necessary, not because it would be impossible to pronounce the
judgment without it, but because there would be a failure of justice
without such evidence being considered.
17.10. Exigency of the situation, fair play and good sense should be
the safeguard, while exercising the discretion. The court should bear
in mind that no party in a trial can be foreclosed from correcting
errors and that if proper evidence was not adduced or a relevant
material was not brought on record due to any inadvertence, the court
should be magnanimous in permitting such mistakes to be rectified.
17.11. The court should be conscious of the position that after all the
trial is basically for the prisoners and the court should afford an
opportunity to them in the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution against possible
prejudice at the cost of the accused. The court should bear in mind
that improper or capricious exercise of such a discretionary power,
may lead to undesirable results.
17.12. The additional evidence must not be received as a disguise or
to change the nature of the case against any of the party.
17.13. The power must be exercised keeping in mind that the
evidence that is likely to be tendered, would be germane to the issue
involved and also ensure that an opportunity of rebuttal is given to the
other party.
17.14. The power under Section 311 CrPC must therefore, be invoked
by the court only in order to meet the ends of justice for strong and
valid reasons and the same must be exercised with care, caution and
circumspection. The court should bear in mind that fair trial entails
the interest of the accused, the victim and the society and, therefore,
the grant of fair and proper opportunities to the persons concerned,
must be ensured being a constitutional goal, as well as a human
right."
7. Bare reading of the aforesaid guidelines makes it clear that first of all, it is a
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discretion of the court to consider for recalling of witness in a trial looking to the
facts and circumstances of the case. Secondly, the same cannot be done for filling
up the lacunae in the trial. The learned trial Court has exercised the discretion and
arrived at a conclusion not to allow the application filed under Section 311 of
CrPC. The petitioner could not justify summoning of Dr. Ashok Sharma in the
present case i.e. Crime No.244/2014. He could not point out that how prejudice is
caused to him in case such doctor is not summoned for giving evidence.
8. Looking to the overall facts and circumstances of the case and the
discretionary power vested with the learned trial Court to allow or not to allow the
application under Section 311 of CrPC for recalling/summoning of witness
coupled with the guidelines down by the Hon'ble Supreme Court in the case of
Rajaram Prasad Yadav (supra), no case for interference is made out. The
impugned order dated 09.04.2025 is just and proper and does not call for any
interference in the present petition.
9. The petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA)
JUDGE
AM
