Madhya Pradesh High Court
Sanjay Nagayach vs The State Of Madhya Pradesh on 23 June, 2016
M.Cr.C. No.7043/2016 23.06.2016 Mr. P.N. Dubey with Mr. Praveen Dubey, learned counsel for the petitioner.
Mr. R.S. Shukla, learned P.L. for the State. This is a petition under Section 482 of the CrPC. The petitioner is an accused in Criminal Case No.433/2010 pending in the Court of learned Judicial Magistrate First Class, Panna. The said case arises from an incident which is alleged to have taken place on 13-4-2007, where the petitioner herein is alleged to have slapped the SDO (P), Pawai, District Panna - Mr. K.B.L. Rajpali, during Kalehi Mata Mandir Festival. It is stated that the petitioner has been falsely implicated on account of political rivalry.
After recording of evidence of the prosecution witnesses and the statements of the petitioner herein, under Section 313 of CrPC, the petitioner moved an application under Section 243(2) of the CrPC for calling 5 witnesses in aid of defence. The Court of learned Judicial Magistrate First Class is said to have allowed the application, as far as 4 witnesses were concerned, but dismissed it on the point of Mr. R.P. Tiwari, who was the then SDO (Revenue), Pawai, District Panna.
Counsel for the petitioner states that this witness is very important for the defence, as he had conducted an enquiry upon the orders of the Collector, Panna, and in that enquiry, Mr. R.P. Tiwari is said to have given a report showing that such an incident never took place.
The impugned order is Annexure-P/1 at page No.13 to 18 of the memo of petition. The relevant portion is at page No.17. The Court while dismissing the prayer to call for Mr. R.P. Tiwari, as a witness for defence, learned trial Court has observed that the petitioner has not given any document in support of his contention that the witness had prepared a report absolving the petitioner herein, on the allegation that he had committed the said offence. The learned Court was also of the opinion, that there would be delay which would occasion, if the said witness would be called for, as he lives in a different District.
Counsel for the State, on the other hand, says that there must have been adequate cause for the learned Magistrate to dismiss the prayer to call Mr. R.P. Tiwari, as defence witness, as the same court has allowed the application as far as 4 other witnesses are concerned, and summoned defence witness. However, reasoning given by the learned trial Court is grossly inadequate. The requirement under Section 243(2) of CrPC is mandatory, that the Magistrate shall issue process to the witness called for by the defence. If the Magistrate refuses to call the witness as desired by the accused it must give reasons which would reflect in application of mind to the effect that allowing the application would cause delay and defeat the ends of justice. It would be perfunctory to dismiss, as it has been in this case, because the petitioner herein, did not have the document which is said to have been prepared by the prospective witness Mr. R.P. Tiwari.
The learned trial Court should take into consideration that the accused invariably is at a disadvantage in a criminal trial as the documents which are to be relied upon by the defence are very hard to come by, and more so, if it was a document prepared by the State which was in favour of the accused.
Learned counsel for the petitioner also states that he has moved an application under RTI Act. However, the same is pending. The trial Court should have been very liberal while considering the said application.
The revision which was moved by the petitioner herein, before the Court of Sessions, has also been dismissed and so the instant 482 of CrPC petition before this Court.
Taking into consideration what has been stated hereinabove, I am inclined to allow the instant petition and set aside the orders of the Courts below and direct the trial Court to issue process and summon Mr. R.P. Tiwari, the then SDO(Revenue), Pawai, District Panna, as a defence witness, who shall remain present with the document which he is said to have prepared absolving the petitioner herein, if the document in question is available.
The instant petition is allowed as above.
(Atul Sreedharan) Judge ac.