Madhya Pradesh High Court
Sandhya vs The State Of Madhya Pradesh on 24 April, 2023
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 24 th OF APRIL, 2023
MISC. CRIMINAL CASE No. 12028 of 2023
BETWEEN:-
SANDHYA W/O VINOD DHALE, AGED ABOUT 37 YEARS,
OCCUPATION: TEACHER R/O NEW OMKARLATTA
COLONY DHAMNOD DISTT. DHAR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI NITIN VYAS, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION MAHESHWAR DISTT.
KHARGONE (MADHYA PRADESH)
2. VINOD S/O KAILASH DHALE, AGED ABOUT 46
Y E A R S , AMBETKAR MARG, MAHESHWAR
DISTRICT KHARGONE (MADHYA PRADESH)
3. KAMLA W/O KAILASH DHALE, AGED ABOUT 67
Y E A R S , AMBETKAR MARG, MAHESHWAR
DISTRICT KHARGONE (MADHYA PRADESH)
4. KRASHNA @ KANHA S/O KAILASH DHALE, AGED
ABOUT 35 YEARS, AMBETKAR MARG,
MAHESHWAR DISTRICT KHARGONE (MADHYA
PRADESH)
5. GAYATRI S/O KAILASH DHALE AMBETKAR
MARG, MAHESHWAR DISTRICT KHARGONE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SURENDRA KUMAR GUPTA-G.A. FOR STATE)
This application coming on for orders this day, th e court passed the
following:
Signature Not Verified
ORDER
Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 25-Apr-23 11:56:20 AM 2 This is a petition under section 482 of Cr.P.C. seeking quashment of the order dated 23.2.2023 passed by I ASJ, West Nimar, Mandleshwar in Criminal Revision No. 02/2023 whereby the revision filed by non-applicant Nos.3 to 5 has been allowed and the order dated 16.11.2022 passed by the Magistrate rejecting the application to recall the prosecution witnesses, complainant Sandhya and Deepak has been set aside.
2. Brief facts of the case are that complainant Sandhya is wife of respondent No.2 and their marriage was solemnized on 25.5.2010. She lodged an FIR alleging ill-treatment and demand of dowry by the husband and relatives. Chargesheet was filed. Trial court framed the charges and recorded the statement of prosecution witnesses. Trial court in exercise of the power under section 215 Cr.P.C. amended the charge and afterward husband added 'relatives'. While allowing the said correction, by order dated 5.9.2022, the Magistrate observed that prosecution and the defence may re-examine their witnesses and defence may bring the additional evidence. Accused persons filed an application under section 217 Cr.P.C. for summoning the complainant Sandhya and her brother Deepak. The said application was rejected by order dated 16.11.2022 by the Magistrate. Being aggrieved by the said order, the accused persons filed revision and by the impugned order, the revision has been allowed and the impugned order has been set aside and the trial court has been directed to examine the complainant Sandhya and witness Deepak by providing opportunity for additional cross-examination.
3. Counsel for the applicant submits that the order passed by the revisional court is illegal and not proper as the complainant was examined and detail cross-examination has been done by the counsel for the accused.
Signature Not Verified4. Counsel for the State supports the impugned order passed by the trial Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 25-Apr-23 11:56:20 AM 3 court and opposes the revisional order.
5. After hearing learned counsel for the parties and taking into consideration that the complaint has been filed by the applicant against her husband and relatives alleging ill-treatment and demand of dowry. On the basis of investigation, charge was framed. While framing of charge, the trial court mentioned about the allegation only against husband and thereafter added the word "or relatives". While adding the aforesaid words in the charge, the Magistrate itself observed that the prosecution or defence would be at liberty to examine and cross-examine the witnesses by summoning them. However, by order dated 16.11.2022 rejected the application filed by the respondent-accused persons under section 217 Cr.P.C. for summoning the complainant and another witness-Deepak. The order of the Magistrate dated 5.9.2022 and 16.11.2022 are self contradictory. While making correction in the charge, he had granted liberty to the prosecution as well as to the defence to adduce additional evidence and cross-examination. As per provisions of section 217 of Cr.P.C. whenever a charge is altered or added by the Court after commencement of trial, the prosecution and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addiction, any witness who may have been examined, unless the Court, for the reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice. The provision of section 217(b) Cr.P.C. further confers power on the trial court to call any further witness whom the Court may think to be material. Thus, wide power has been granted under section 217 Cr.P.C. for recalling of the witnesses when the charges are altered or added.
Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHALSigning time: 25-Apr-23 11:56:20 AM 4 The general rule is that the prayer for re-summoning or recalling the witnesses, has to be allowed unless the Court is of the view that application has been filed for the purpose of vexation or delay for defeating the ends of justice.
6. The revisional court has rightly allowed the revision as the applicant has failed to show that the application under section 217 Cr.P.C. was covered within the exception under sub-clause(b) of section 217 Cr.P.C.. The Magistrate shall provide opportunity to cross-examine the complainant Sandhya(PW-1) and Deepak (PW-2) and it is directed that accused persons shall not seek unnecessary adjournment to delay the trial.
In view of aforesaid, M.Cr.C. is dismissed.
(VIJAY KUMAR SHUKLA) JUDGE MK Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 25-Apr-23 11:56:20 AM