Madhya Pradesh High Court
Ramniwas vs The State Of Madhya Pradesh Thr on 17 April, 2017
Criminal Revision No.247/2017 1
(Ramniwas Vs. State of M.P.)
17.4.2017.
Shri R.S.Bansal, learned counsel for the petitioner.
Shri C.R.Roman, learned Public Prosecutor for the
respondent/State.
Petitioner has filed this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 being aggrieved by order dated 25.2.2017 passed by the Third Additional Sessions Judge, Guna, in S.T.No.49/2010 (State of M.P. Vs. Mustkeen & Ors. ) wherein an application moved by the prosecution under Section 311 of Cr.P.C. to call a witness who had given report Ex.P/19 has been allowed.
It is petitioner's case that once the arguments under Section 314 of Cr.P.C. were filed by the accused persons, then to fill in the lacuna, prosecution could not have been allowed to call a witness who was neither a listed witness in the list of witnesses submitted by the prosecution nor appropriate steps were taken by the prosecution to call him and the act of the prosecution in moving such application to call a witness who was author of Ex.P/19 has been assailed by the petitioner on the ground that trial is pending since 2010 and earlier an application was moved by the accused persons to recall S.P.Saxena (PW-2), but that application was dismissed on 8.3.2016 on the ground that an application under Section 311 of Cr.P.C. cannot be allowed to fill in the lacuna. It is also submitted that prosecution had earlier moved an application to call witnesses, namely, Dhirendra Pawar, Bharat Bhushan Sharma, Dinesh Kumar Sharma and Ravindra Yadav and that application was accepted on 18.9.2015. At that time also, it was mentioned that witness Dinesh Sharma is a witness in relation to Ex.P./19 and no request was made to call technical officer of Bank Note Press Devas, namely Shri Criminal Revision No.247/2017 2 G.K.Kulkanrni and now once defence of the accused has been disclosed, then allowing this application will greatly prejudice the case of the petitioner and it is also submitted that lacuna cannot be allowed to be filled by the prosecution endlessly.
Learned counsel for the petitioner has placed reliance on the judgment of Supreme Court in the case of Vinod Kumar Vs. State of Punjab as reported in (2015) 3 SCC 220 wherein it has been held that it is the duty of the presiding judge as representative of the collective/ society for expeditious disposal so that truth is not the victim and accused do not get time to win over witnesses. It has been also held that calling of a witness for cross-examination after a long span of time, is anathema to concept of proper and fair trial. Similarly, reliance has also been placed on the judgment of the Supreme Court in the case of State of Haryana Vs. Ram Mehar and Ors. as reported in (2016) 8 SCC 762 wherein the Supreme Court has again held that Article 21 of the Constitution of India ensures fair and speedy trial and doctrine of balance i.e. interests of victim/ the collective and accused must be balanced by the Courts. It has also been held that concept of fair trial cannot be limitlessly stretched to permit recall of witnesses endlessly on ground of magnanimity etc. Placing reliance on such judgment, learned counsel for the petitioner has submitted that concept of fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim, which is a part of the society, can Criminal Revision No.247/2017 3 claim absolute predominance over the other. Once absolute predominance is recognized, it will have the effect potentiality to bring in an anarchical disorder in conducting of trial, defying established legal norm. There should be passion for doing justice, but it must be commanded by reasons and not propelled by any kind of vague instigation. It has been held that it would be dependent on the fact situation, established norms and recognized principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalization, but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously, the concept of fair trial cannot be allowed to such an extent, so that the systemic order of conducting a trial in accordance with Cr.P.C. or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of Cr.P.C. cannot be thrown to winds. In such situation, it has been held that Courts have significantly an eminent role. In the light of such judgment, learned counsel for the petitioner reiterated that the application has been wrongly allowed after much delay and revision should be allowed and the impugned order should be set aside.
Learned Public Prosecutor on the other hand submits that learned Sessions Judge has rightly noted that copy of the submissions under Section 314 of Cr.P.C. was not handed over to the prosecution and prosecution had no information in regard to such written statement. Learned Public Prosecutor has also submitted that report Ex.P/19 is already on record and since the technical officer who had prepared such report has not been Criminal Revision No.247/2017 4 examined, it is necessary that such examination be permitted and it is not a case of recall of a witness, but for the first time Shri G.K.Kulkarni will be called on account of Sessions Judge allowing an application under Section 311 of Cr.P.C. and if Shri G.K.Kulkarni is allowed to be examined, then the petitioner will have a right to cross-examine him and it cannot be said that any prejudice will be caused to the accused/petitioner. In view of the aforesaid, he has supported the impugned order.
To decide this controversy, it is necessary to advert to the provisions contained in Section 311 of Cr.P.C. which provides power to summon material witness, or examine person present. It has also been settled in the case of Heeralal Vs. State of M.P. as reported in (1997) 2 Crimes 634 (MP) that Court is empowered to summon any person as a witness at any stage of inquiry, trial or other proceeding. It is also a settled principle of law that power of Court to recall any witness or witnesses is even available if the evidence in both the sides is closed as has been held in the case of Mohanlal Shamji Soni Vs. Union of India as reported in (1981) 1 Crimes 818 (SC). It is no denying that report as was prepared by technical officer Shri G.K.Kulkarni is already on record. If that report as was prepared by Shri G.K.Kulkarni is not allowed to be exhibited in the hands of author of the report, then acute prejudice can be caused to the case of prosecution, and therefore, in the light of the law laid down by the Supreme Court in the case of Vinod Kumar (supra) that truth should not suffer because of delay, it can safely be concluded that the concept of fair trial has been considered by the Sessions Court and it has rightly exercised its authority to call a witness whose document is already on record in the form of Ex.P/19. Since in the present case, the Sessions Court has held that calling of such a witness is necessary for just decision of the case or to Criminal Revision No.247/2017 5 arrive at the truth, this Court is of the view that there is no error apparent on the face of record calling for interference. Thus, this revision petition fails and is dismissed.
(Vivek Agarwal) Judge ms/-