Madhya Pradesh High Court
Jubi @ Shakil Ahamad vs The State Of Madhya Pradesh on 10 November, 2021
Author: Vishal Mishra
Bench: Vishal Mishra
1
HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 54721 of 2021
(Jubi @ Shakil Ahmad and others Vs. State of M.P. )
Jabalpur, Dated : 10.11.2021
Shri S.K. Tiwari, learned counsel for the petitioner.
Shri Tapan Bathre, , learned Panel Lawyer for the respondents/State.
With the consent of learned counsel for the parties, the matter is finally heard.
The present petition under Section 482 of Cr.P.C. has been filed challenging the order dated 26.10.2021 passed by the 5 th A.S.J., Sidhi, district Sidhi in S.T. No. 26/13, whereby the application filed under Section 315 of Cr.P.C. by the accused for calling the witness, Jubi @ Shakil Ahmad has been rejected by the learned trial court on the ground that Hon'ble High Court has bound the trial court to decide the trial prior to 31.12.2021.
It is submitted that the accused is having a right to get himself examined as a defence witness, in pursuance to provision under Section 315 of Cr.P.C. It is submitted that the learned trial court is in a great hurry and has fixed the matter for final hearing initially on 01.11.2021 and subsequently the same was adjourned to 13.11.2021.
He has drawn attention to the order sheets of the trial court and has argued that the last defence witness no. 9 was examined on 2 13.9.2021 and defence witness no. 10 Ashok Kumar was also examined. Thereafter, the defence witness right was closed. The name of witness Jubi @ Shakil Ahmad was reflected but this court has not even issued summon to call him. An innocuous prayer is made by filing an application under Section 315 of Cr.P.C. to call the aforesaid witness for examination.
Counsel for the petitioner submits that only one opportunity be granted to him to call the witness, Jubi @ Shakil Ahmad for examination as defence witness as the same being the material witness for just and proper disposal of the case.
Per contra, counsel appearing for the State has vehemently opposed the arguments and has submitted that the session trial is at the stage of final argument. The defence witnesses were closed on 13.9.2021 and the case is fixed for arguments on 27.9.2021. Thereafter, time was sought and again and the matter was fixed for final arguments. Then an application under Section 315 of Cr.P.C. was filed just to delay the proceeding of the trial . In such circumstances, no illegality has been committed by the trial court in rejecting the application under Section 315 of Cr.P.C. The matter is fixed for final arguments, therefore, the petitioner is trying to delay the proceedings, hence, he has filed the present petition.
Heard learned counsel for the parties and perused the record. 3 From perusal of the record, it is seen that the proceedings of the session trial are at the fag end and the matter is listed for final arguments. The application for examination of accused as a defence witness filed under the provisions of under Section 315 of Cr.P.C. The provisions of under Section 315 of Cr.P.C. are required to be seen :-
315. Accused person to be competent witness - (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial;
Provided that--
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. (2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings;
Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry.
The application under Section 315 of Cr.P.C. was filed by Jubi @ Shakil Ahmad himself but the trial court has rejected the application only on the ground that Hon'ble High Court has directed to expedite the 4 matter and conclude the trial prior to 31.12.2021, but the fact remains that right of the accused to be examined as defence witness in terms of Section 315 of Cr.P.C. could not be curtailed.
In such circumstances, the order impugned rejecting the application under Section 315 of Cr.P.C. is per se illegal. The same is accordingly set aside. As the matter is fixed on 13.11.2021 before the trial court. Counsel for the petitioner agrees to for keeping Jubi @ Shakil Ahmad present for examination as defence witness on 12th of November 2021 before the trial court. In such circumstances, as a matter of last indulgence, it is directed that Jubi @ Shakil Ahmad be made present before the trial court for examination as a defence witness on 12th of November 2021 positively, failing which the trial court may close the right and may proceeding for hearing the matter on merits finally.
Copy of this order be communicated to the trial court immediately. The petition stands disposed of.
(VISHAL MISHRA) JUDGE bks BASANT KUMAR SHRIVAS 2021.11.11 15:00:32 +05'30'