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Madhya Pradesh High Court

Gabdhu Singh vs The State Of Madhya Pradesh on 14 December, 2021

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari

                                                                       1                              CRR-2916-2021
                                            The High Court Of Madhya Pradesh
                                                     CRR No. 2916 of 2021
                                                      (GABDHU SINGH Vs THE STATE OF MADHYA PRADESH)


                                     Jabalpur, Dated : 14-12-2021

                                          Shri Beni Prasad Patel, learned counsel for the applicant.

                                          Shri      Prateek    Jain,       learned   Panel    Lawyer     for   the
                                     respondent/State.

Heard on the question of admission.

This criminal revision under section 397/401 of the Code of Criminal Procedure, 1973 has been filed being aggrieved by the order dated 28/09/2021 passed by the 2nd Additional Sessions Judge, Pipariya, District Hoshangabad in S.T. No. 124/2010 by which the learned trial court has dismissed the application filed by the applicant under section 315 of the Cr.P.C.

The brief facts, leading to filing of this case, are that the applicant is a Secretary of Gram Panchayat Paraswada Nandana, Tehsil Bankhedi, District Hoshangabad. Due to certain irregularities committed by the Sarpanch, he raised an objection with regard to inferior quality of construction and also with regard to non keeping of the accounts. The applicant has been made accused in the present case. He moved an application u/s 91 and u/s 315 of Cr.P.C. The court below allowed the application filed u/s 91 of Cr.P.C. however, rejected the application filed u/s 315 of Cr.P.C. The application u/s 315 of Cr.P.C. has been rejected on the ground that the applicant is an accused and he was examined on 27/08/2019. After allowing him to participate as defence witness the applicant had moved this application. The matter was posted for defence witness w.e.f.

24/02/2019 to 27/01/2020 and at present the matter is fixed for final SAN Digitally signed by NAVEEN NAGDEVE Date: 2021.12.16 10:47:41 IST 2 CRR-2916-2021 hearing. However, inspite of granting several adjourment the matter could not be heard finally therefore, when the matter was fixed for final hearing, the application u/s 315 of Cr.P.C. cannot be allowed.

Learned counsel Shri B.P. Patel for the applicant contended that the learned trial court has committed grave error in not extending the time for adducing the evidence for defending the case properly hence, the impugned order deserves to be set aside as the same is against the cardinal principle of natural justice that every party should be allowed reasonable opportunity to prove his case.

Heard learned counsel for the parties and perused the impugned order.

Section 315 of the Code, Accused person to be competent witness What is required for availing of the benefits as per the provisions contained in the section 315 of the Code are:-

(1) that there must be a trial in the criminal court; (2) person applying to be examined under the provisions of the said provisions would be necessarily an accused;

(3) when the stage of invoking the provisions of the said Act has reached i.e. to say after conclusion of record of evidence of the prosecution followed by the explanations/submissions of the accused as required under sec. 313 of the Code is over;

(4) the evidence of such accused will to on oath as a witness; (5) such evidence must be in disproving of the charges made against him or any person charged together with him at the trial is last requirement.

The pertinent aspect is that such evidence must be in disproving Signature Not Verified SAN Digitally signed by NAVEEN NAGDEVE Date: 2021.12.16 10:47:41 IST 3 CRR-2916-2021 of the charges made against him or any person charged together with him at the same trial. Hence, the nature of evidence cannot be for strengthening the case of the prosecution to prove guilt of any of the accused, but must be in disproving of the charges made against him. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to examine himself on oath as a witness.

The Apex Court in case of Selvi and others vs. State of Karnataka, reported in (2010) 7 SCC 263 observed that even though any accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so.

But, once the accused volunteers to give evidence by written request and enters the witness box, he subjects himself to all the liabilities of an ordinary witness.

The Apex Court in case of Gajendra Singh and others vs. State of Rajasthan, reported in (1998)8 SCC 612 observed that once the court allows the application of the accused to be examined as a defence witness and commences recording his evidence, he cannot be denied opportunity t o produce his documents merely because he did not produce the same earlier.

The accused person was earlier allowed to be examined under sec. 315 of the Code, but he did not choose to depose. The defence evidence was thereafter closed after giving adequate opportunities to the defence. In the circumstance the plea of violation of natural justice has no legs to stand upon.

4 CRR-2916-2021 In light of above discussed legal position, these facts required to be repeated that after statements recorded under the provisions of Section 313 of the Code the appellant/accused Gabdhu Singh chooses to examine himself as witness to disproving of the charges made against him and after obtaining required permission under the provisions of Section 315 of the Code his examination-in-chief was also recorded on dated 27/08/2019.

To deny a litigant an opportunity on grounds, as discussed above is against the criminal justice delivery system. At this juncture, this cardinal principle of natural justice requires to be repeated that every party has right to be allowed sufficient opportunity to put up his case as well as his defence and reason is simple that the other party will also be at liberty to rebut it and can produce evidence for its rebuttal.

In light of above facts and circumstances of the case by allowing this petition, the order dated 28/09/2021 passed by learned trial Court is hereby quashed. Parties shall appear personally or through their counsel before learned trial Court (IInd Additional Sessions Judge, Pipariya, District Hoshangabad) on the next date as fixed by the trial Court. Thereafter, learned trial Court will give an opportunity to the applicant to produce his defence evidence. At the same time, learned trial Court will also make available appropriate opportunity to the respondent to rebut defence evidence put up by the applicant and also allow the respondent to produce further evidence for rebuttal, if so desired.

(S. A. DHARMADHIKARI) JUDGE Digitally signed by NAVEEN NAGDEVE Date: 2021.12.16 10:47:41 IST 5 CRR-2916-2021 navin Signature Not Verified SAN Digitally signed by NAVEEN NAGDEVE Date: 2021.12.16 10:47:41 IST