[Cites 13, Cited by 0]
Madhya Pradesh High Court
Suresh Jha vs The State Of Madhya Pradesh on 21 January, 2026
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2026:MPHC-GWL:2627
1 MCRC-10274-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 21st OF JANUARY, 2026
MISC. CRIMINAL CASE No. 10274 of 2024
SURESH JHA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Pratip Visoriya - Advocate for the petitioner.
Shri Brijesh Kumar Tyagi Ga appearing on behalf of Advocate
General.
Shri Shobhendra Kumar Tiwari, learned counsel for the respondent [R-
2].
ORDER
This petition under Section 482 of Cr.P.C. has been filed by the
petitioner for quashing the order dated 07.02.2024 passed by First Additional
Sessions Judge, Datia, District Datia in Sessions Trial No. 06/2023, whereby
the application filed by the prosecution under Section 311 Cr.P.C. read with
Section 165 of the Evidence Act has been allowed.
2. The prosecution case, as per FIR, is that the complainant is a retired
police employee and resident of District Datia. His wife owns a plot situated
at Sharda Vihar Colony, Dinara Road, near Railway Station, Datia, bearing
Plot No. 11, admeasuring about 1800 sq. ft. On 04.06.2019, an agreement
was executed between the complainant and the present applicant Suresh Jha
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for construction of a two-storeyed house on the said plot. The rate was fixed
at Rs. 1200/- per sq. ft. for 3600 sq. ft., making the total contract value Rs.
43,20,000/-. The time period for completion was fixed as 15 months
including rainy season. The complainant alleges that from June 2019 to
September 2019, he paid various amounts to the applicant through cash and
cheques, totaling Rs. 15,05,000/-. Despite receiving the amount, the
applicant did not complete the work. Thereafter, between December 2020
and August 2021, the complainant paid further amounts to the applicant on
different occasions, including in the presence of some persons, and through
cheques, and the total alleged amount paid became Rs. 20,45,000/-. The
applicant neither completed the construction nor returned the money and
later refused to do so and also abused and threatened the complainant. On the
basis of the complaint dated 26.12.2021, an FIR was registered for offences
under Sections 420, 406, 504 and 506 IPC. After investigation, charge-sheet
was filed under Sections 420, 406, 504, 506 and 409 IPC.
3. It is submitted that during trial, prosecution evidence was
completed, statement of the accused under Section 313 Cr.P.C. was recorded,
and defence evidence also commenced and at that stage, the prosecution
moved an application under Section 311 Cr.P.C. for summoning one
Archana Tiwari as a witness, whose name was neither in the charge-sheet nor
her statement under Section 161 Cr.P.C. was ever recorded. The learned Trial
Court, by order dated 07.02.2024, allowed the said application, aggrieved
thereby the present petition has been filed by the petitioner.
4. Learned counsel for the petitioner submitted that the impugned
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order allowing the application under Section 311 Cr.P.C. is illegal, arbitrary
and contrary to settled principles of law as the prosecution evidence has
already been closed, statement under Section 313 Cr.P.C. has been recorded
and even defence evidence had started and at such a highly belated stage,
allowing a new witness would amount to giving a second chance to the
prosecution. It is further submitted that Archana Tiwari was never cited as a
prosecution witness in the charge-sheet and her statement under Section 161
Cr.P.C. was never recorded during investigation and the application under
Section 311 Cr.P.C. is clearly filed after seeing the defence of the accused,
therefore coiuld be said to purely fill up lacuna in the prosecution case. Also
the prosecution has not explained in the application as to why this witness
was not examined during the prosecution evidence stage, that such exercise
of power under Section 311 Cr.P.C. could be said to cause serious prejudice
to the accused and would destroy the fairness of trial, therefore, prayed that
the impugned order suffers from illegality and deserves to be quashed.
5. It has been further argued by the learned counsel for the petitioner
that Section 311 Cr.P.C. gives wide powers to the Court, but such power is
not unlimited. It can be exercised only when the evidence is essential for the
just decision of the case and not to help either party to repair weaknesses in
its case. It has been argued that the power cannot be used to fill up omissions
in the prosecution case, to give a second chance to the prosecution, to cause
prejudice to the accused. In the present case prosecution evidence is already
closed and statement under Section 313 Cr.P.C. is recorded and defence
evidence has started and only after seeing the defence strategy, the
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prosecution has filed this application. This clearly shows that the application
is not bona fide and is only intended to patch up the weak points of the
prosecution case. Allowing such a witness at the stage of defence evidence
completely changes the nature of the trial and seriously prejudices the
accused. It has further been argued that the prosecution has not explained
why this witness was not examined during prosecution evidence, why her
statement was not recorded during investigation and why the application is
filed only after defence started and in absence of any explanation, the
application deserves rejection. It has also been argued that the petitioner has
already disclosed his defence. Now allowing a new witness gives unfair
advantage to the prosecution which takes away the right of fair trial from the
petitioner and violates the principle of criminal justice that prosecution must
stand on its own legs. It has further been argued that the learned Trial
Court has not considered the stage of trial and not considered prejudice to
the petitioner and also not recorded how the evidence is essential for just
decision and mechanically allowed the application. To bolster his
submission learned counsel for the petitioner has placed reliance on the
judgement in the case of Swapan Kumar Chatterjee Vs. Central Bureau of
Investigation, AIR Online 2019 SC 693, Sewa Ram Vs. State of M.P.
(Criminal Revision No.298 of 2008 (1) decided on 18.8.2008) and in the
case of Manu Dev Vs. Respondent/Victim and State of Kerala, (CRL.MC
No.1034 of 2023, decided on 13.3.2023) and prayed that the order dated
7.2.2024 passed by the learned Trial Court deserves to be set aside.
6. Per contra, counsel for the respondent/State as well as counsel for
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respondent No.2 opposed the submissions made by counsel for the petitioner
and submitted that the evidence of Archana Tiwari has already been recorded
on 22.02.2024; therefore, they prayed for rejection of the petition.
7. Heard the counsel for the parties at length and has carefully perused
the record.
8. It is not in dispute that the prosecution has moved an application
under Section 311 Cr.P.C. for examining Archana Tiwari and the same has
been allowed by the learned Trial Court by order dated 07.02.2024. It is also
not in dispute that the said witness has already been examined on
22.02.2024. The main contention of the petitioner is that the application
under Section 311 Cr.P.C. has been allowed at a belated stage and that the
said witness was neither cited in the charge-sheet nor her statement under
Section 161 Cr.P.C. was recorded and therefore, according to the petitioner,
the application was only to fill up lacuna in the prosecution case.
9. This Court does not find any merit or force in the aforesaid
submissions. Section 311 Cr.P.C. confers very wide powers upon the Court
to summon any person as a witness or to recall or re-examine any person at
any stage of the trial, if the Court is of the opinion that such evidence is
essential for the just decision of the case. The primary duty of the Court is to
discover the truth and to ensure that justice is done. Merely because the
application has been filed at a later stage or after commencement of defence
evidence is not, by itself, a ground to reject the application, if the Court finds
that the evidence is necessary for proper and just adjudication of the case. It
is also well settled that the power under Section 311 Cr.P.C. is to be
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exercised by the Court not for the benefit of either party, but to subserve the
cause of justice.
10. So far as the contention that Archana Tiwari was not cited as a
witness in the charge-sheet and her statement under Section 161 Cr.P.C. was
not recorded is concerned, it is settled law that there is no legal bar in
examining such a witness, if the Court finds that her evidence is relevant and
necessary for a just decision of the case. The list of witnesses in the charge-
sheet is not exhaustive, and the Court is not powerless to summon any person
whose evidence appears to be necessary. The argument that the application
has been filed to fill up lacuna in the prosecution case is also without
substance. There is a clear distinction between "filling up a lacuna" and
"bringing on record necessary evidence for a just decision". A lacuna is an
inherent weakness in the prosecution case, but if certain relevant evidence
has been left out or could not be produced earlier for any reason, the Court
can always permit such evidence in the interest of justice. In the present
case, the learned Trial Court, after considering the facts and circumstances,
has recorded a finding that the evidence of Archana Tiwari is necessary for
proper adjudication of the case and has also ensured that full opportunity of
cross-examination is given to the accused. Therefore, no prejudice is caused
to the petitioner. The contention that the defence of the accused has already
been disclosed and therefore the prosecution has been given an unfair
advantage also cannot be accepted. The duty of the Court is to reach the
truth and not merely to count the technical lapses of either side.
11. So far as the judgments relied upon by learned counsel for the
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petitioner in the cases of Swapan Kumar Chatterjee vs. CBI, Sewa Ram vs.
State of M.P. and Manu Dev vs. State of Kerala (supra) are concerned, this
Court finds that the said judgments were passed in entirely different factual
situations where the Courts had found that the applications were filed purely
to cover up serious defects in the prosecution case or where grave prejudice
was being caused to the accused. The facts of the present case are different,
and therefore, the said judgments do not support the case of the petitioner.
12. This Court does not find any perversity, illegality or jurisdictional
error in the order dated 07.02.2024 passed by the learned Trial Court. The
impugned order is a well-reasoned order passed in exercise of lawful
jurisdiction.It is also settled that the inherent powers under Section 482
Cr.P.C. are to be exercised sparingly and only to prevent abuse of process of
Court or to secure the ends of justice. No such case is made out in the
present matter.
13. Accordingly, the petition being devoid of merit is hereby
dismissed.
(MILIND RAMESH PHADKE)
JUDGE
(aspr)
