Madhya Pradesh High Court
Vishnu Kumar Dwivedi vs The State Of Madhya Pradesh on 3 April, 2019
1 CRR-1420-2019
The High Court Of Madhya Pradesh
CRR-1420-2019
(VISHNU KUMAR DWIVEDI Vs THE STATE OF MADHYA PRADESH)
4
Jabalpur, Dated : 03-04-2019
Shri Shankar Dayal Shukla, learned counsel for the petitioner.
Shri Brijendra Kushwaha, learned P.L. for the respondent/State.
Heard.
This criminal revision has been preferred by the petitioner being aggrieved by the order dated 25.02.2019 in Special Case No. 7/2014 passed by Special Judge (NDPS) Anuppur whereby the learned Special Judge has rejected the application under Section 311 of Cr.P.C. filed by the petitioner.
Brief facts of the case are that petitioner has been made as an accused for the offence punishable under Section 8/20 of NDPS Act and charge sheet has been filed for the same. During trial Ashok Gautam, Investigation Officer who is the witness of the case has been examined before trial Court on 23.09.2016 and subsequently his cross examination was conducted on 18.12.2018. The examination of entire prosecution witnesses has been completed on 09.01.2019.
On 22.02.2019 petitioner has preferred an application under Section 311 of Cr.P.C. contending that some important question could not be asked from the witness Ashok Gautam during his cross examination. The learned Special Judge after considering the submission, has rejected the application filed by the petitioner.
The learned counsel for the petitioner submits that the trial Court committed error while rejecting an application under Section 311 of Cr.P.C. Ashok Gautam is Investigation Officer of the case and his examination in chief was conducted on 23.09.2016, whereas he was cross examined 18.12.2018 after lapse of more than 2 years and the learned trial Court has not given any conclusive opinion in this regard. The question which was skipped to be asked from the witness are very crucial and important for final and fair 2 CRR-1420-2019 adjudication of the case. Therefore, the order passed by trial Court is not sustainable and deserves to be set aside.
On the other hand, counsel for the State opposes the prayer and submits that the revision petition filed by the petitioner is not maintainable as order passed under Section 311 of Cr.P.C. is interlocutory in nature and it is well settled of principle of law that against the interlocutory order, revision petition is not maintainable.
Apart from that the application filed by the petitioner is having no merits and has been filed only to cause delay in trial. The learned Special Judge has rightly appreciated the fact and rejected the same, therefore, this petition is not maintainable and deserves to be dismissed.
Heard both the parties and perused order of trial Court. It appears from the order of trial Court that the learned Special Judge has rejected the application by giving the findings that the witness Ashok Gautam has already been examined and cross examined by the parties and the case was fixed for evidence of defence at present. Application was filed by the petitioner after lapse of sufficient time for causing delay in trial.
Further from perusal of application preferred by the petitioner, it appears that petitioner specifically contended the questions which he wants to ask from the witness namely Ashok Gautam, but from reading of the order passed by learned Special Judge, this Court finds that the learned Judge did not consider the contentions raised by the petitioner and has not given any findings in this regard.
The learned counsel for the respondent has raised an objection regarding maintainability of this revision petition. In this regard in the case of Sethuraman Vs. Rajamanickam reported in (2009) 5 SCC 153 has held as under:-
"5. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, t he revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its
3 CRR-1420-2019 common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable....................."
Therefore, it is undisputed fact that the order passed under Section 311 of Cr.P.C. is interlocutory in nature and the revision petition is not maintainable against the same, but looking to the circumstances of the case and in the interest of justice, this Court of the opinion that the case should be remanded back to the learned Special Judge (NDPS), Anuppur for fresh adjudication of application under Section 311 of Cr.P.C. as specific findings regarding averments of the application have not been given. Needless to say, the learned Special Judge shall decide all the contentions raised by the petitioner in his application in accordance with law.
Accordingly, this revision petition is dispose of.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE L.R. Digitally signed by LALIT SINGH RANA Date: 2019.04.12 04:49:20 -07'00'