Madhya Pradesh High Court
Sonu Choubey vs The State Of Madhya Pradesh on 2 September, 2015
( 1) Criminal Revision No. 252/2015
Sonu Choubey and Chandu
Vs.
State of M.P. And other
02/09/2015
Shri Sushil Goswami, Advocate for the petitioner.
Shri Rajendra Singh Yadav, PP for respondent/
State.
Shri Inder Asthna, Advocate for complainant. Heard.
This criminal revision under Section 397 read with Section 401 of Cr.P.C has been filed by the accused persons of Criminal Case No. 05/2008, pending in the Court of Special Judge ( MPDVPK) Act, Datia assailing the order dated 10.3.2015, whereby the application under Section 311 of Cr.P.C has been filed by the accused persons and another application by Rajendra Prasad Agrawal (PW-1) and Babu Singh Niranjan (PW-2) for recalling the witnesses, were decided by a common order by the trial Court and the same were dismissed.
2. Brief facts just necessary for disposal of this application are:-
Police Station, Sewda District Datia has initiated the Special Case No. 05/08 under Section 364-A, 368, 120-B of IPC read with 11/13 of MPDVK Act and Section 30 of Arms Act against the petitioner and accused persons. Rajendra ( 2) Criminal Revision No. 252/2015 Prasad Agrawal (PW-1) and other Babu Singh Niranjan (PW-2) were examined on 21.7.2008 and 22.7.2008. After a lapse of about four and half years, the accused / petitioner filed application under Section 311 of Cr.P.C along with affidavits of Rajendra Prasad Agrawal (PW-1) and Babu Singh Niranjan (PW-2) to recall them and re- examine them. The learned trial Court vide the impugned order dated 10.3.2015 dismissed the same stating that neither the application of accused persons under Section 311 of Cr.P.C nor the application of witnesses Rajendra Prasad Agrawal (PW-1) and Babu Singh Niranjan (PW-2) can be allowed. They have not filed the affidavits immediately after they deposed. Neither it can be believed that their statements recorded on 21.7.2008 and 22.7.2008 were deposed on the threat of the police, as has been mentioned in the application. Regarding repentance by the witnesses the same is not plausible, for these being any repentance, they could have immediately filed the application or affidavits soon after their statements were recorded. It seems that they have entered into a compromise with the accused persons, therefore, witnesses have executed these affidavits with an ulterior motive.
3. Learned counsel for the petitioner strenuously argued that the impugned order is not correct in the eyes of law. The witnesses can be recalled at any point of time, ( 3) Criminal Revision No. 252/2015 if necessary for just and proper decision of the case. The power under Section 311 of Cr.P.C is very wide and it enables the Court at any stage of inquiry, trial or other proceedings under this Code to re-call and re-examine for just and proper decision of the case.
4. Learned counsel for respondent No.2 also supported the arguments advanced by the learned counsel for petitioner and submitted that the respondent No.2, be ordered to be re-examined, setting aside the impugned order. It is further submitted that the affidavits executed by the respondent No.2 Rajendra Prasad Agarwal (PW-1) and Babu Singh Niranjan (PW-2) are bonafide.
5. Having gone through the rival contentions and after perusal of the impugned order dated 10.3.2015, this Court is the opinion that the application for re-calling the witnesses has been filed after a period of four and half years. Their repentance as presented by the respondent No.2 and witness Babu Singh Niranjan seems to be not proper.
In Umar Mohammad Vs. State of Rajasthan (2008 Cr. L.J 816, it is held that:
"Where prosecution witness after he has supported the prosecution case is won and he applies to the Court under Section 311 for his re-call that the accused are innocent, Court would be ( 4) Criminal Revision No. 252/2015 justified in rejecting such an application"
6. The learned counsel for the petitioner placed reliance on Shahid Roshan Jameer Vs. State Madhya Pradesh reported in 2022 (2) MPHT 39, in which the law laid down in Hussain Umar Kochra etc. Vs. K.S. Dalipasinghji and Anr. (AIR 1970 S..C. 45) has been reiterated. It is held that "the Court has inherent power to recall a witness, if satisfied that the witness is prepared to give evidence which is materially different from what he had given at the trial".
7. In the present case the witness as PW-1 and PW-2 have relegated from their earlier statements. Therefore the case law of Shahid Roshan Jameer (supra) is not applicable in the case in hand.
8. In order to enable the Court to find out the truth and render a just decision the salutary provision of Section 311 of Cr.P.C are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. The Court ( 5) Criminal Revision No. 252/2015 examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. The fundamental thing to be seen is whether the Court thinks it necessary in the facts and circumstances of the particular case before it. This power must be exercised sparingly and only in suitable cases.
9. In the light of above discussions and the case laws, this Court is of the considered opinion that the impugned order dated 10.3.2015 passed by the learned trial Court does not suffer from any illegality, perversity or impropriety.
10. Accordingly, revision petition sans merits and is hereby dismissed.
(S.K. Palo) JUDGE dcs/-