Madhya Pradesh High Court
Mahmood Ahmed Khan vs Masoor Ahmed Khan on 19 April, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-4517-2018
(MAHMOOD AHMED KHAN Vs MASOOR AHMED KHAN)
3
Jabalpur, Dated : 19-04-2018
Shri Mukhtar Ahmad, learned counsel for the petitioner.
Shri Ashok Kumar Jain, learned counsel for the respondent.
This petition under Section 482 of Cr.P.C. has been filed to invoke the extraordinary jurisdiction of this Court and to set aside sh order dated 30/11/2017, passed by the learned JMFC, Jabalpur in e Criminal Case No.14656/08, whereby the application for ad reexamination of the complainant/petitioner has been disallowed.
Pr
2. The factual matrix of the case in brief is that, the petitioner is the complainant in Criminal Case No.14656/08 in which, cognizance a hy has been taken for offence under Section 406 of IPC against the respondent. The respondent is the brother of the ad petitioner/complainant. It is alleged that, the petitioner/complainant M had executed a power of attorney in the name of his brother, the respondent on 08/06/1990. The petitioner is the owner of the land, of comprising Khasra No.44/1, 59, 60, 184 located at Madhotal in front rt of ITI, Jabalpur. The respondent/accused sold the land of the petitioner ou and misuse the power of attorney and misappropriate the amount received by him as compensation. The petitioner has filed the C complaint case against the respondent. h
3. During the course of the examination on 16/01/2013, the ig complainant could not exhibit the documents in support of the H complaint. When the complainant realized the same, he filed an application for exhibiting the said documents; the said application was pending for long and the petitioner withdrew the same on 25/01/2016, so that the progress of the recording of evidence should continue.
4. On behalf of the petitioner, it is claimed that, his wife was examined as PW/2. During her examination, the petitioner sought to exhibit the said documents but the trial Court did not allow the said documents to be exhibited. Therefore, the petitioner had no option but to file an application on 07/11/2017 before the trial Court for his reexamination for the purpose of exhibiting the said documents. The trial Court rejected the said application under Section 311 of Cr.P.C. on 30/11/2017.
5. The petitioner/complainant challenged the said order before the Revisional Court in Criminal Revision No.12/18. Before the learned Third ASJ, Jabalpur, counsel for the petitioner withdrew the revision and it was dismissed as not pressed on 17/01/2018.
6. The petitioner/complainant, therefore, preferred this application under Section 482 of Cr.P.C. on the ground that, it is settled law that, the Court should recall the witness for reexamination sh if, the evidence of the said witness is necessary in the interest of e justice and the delay or the pretext of filling of lacuna is no ground for ad the refusing to recall the witness for evidence. It is also claimed that, Pr the offence under section 406 of IPC is involved. The document is an important piece of evidence to prove the charge of breach of trust. The a refusal to call the witness for exhibiting the documents is unjust and hy would deprive the petitioner.
ad
7. Per contra, counsel for the respondent submits that, the M petitioner preferred an application under Section 311 of Cr.P.C. before the learned JMFC and withdrew the same on 25/11/2016.
of Subsequently, he filed an application under Section 311 of Cr.P.C. which was dismissed on 07/11/2017. The complainant again withdrew rt the Criminal Revision No.12/18 on 17/01/2018 without seeking any ou liberty.
C
8. Perused the record.
h
9. The contentions of the petitioner in the petition itself show ig that, the petitioner withdrew the application under Section 311 of H Cr.P.C. on 23/11/2016 before the learned trial Court and subsequently, withdrew Criminal Revision No.12/18 on 17/01/2018.
10. Counsel for the petitioner has placed reliance on Rajendra Prasad Vs. Narcotic Cell through its Officer In-charge, Delhi reported as 1999 AIR SCW 2356, wherein the Apex Court has held that, the power under Section 311 of Cr.P.C. can be exercised at any stage of the trial even in a case where the public prosecutor committed mistake or latches in conducting the case. It cannot be understood to mean filling up lacuna.
11. In the words of Apex Court, a lacuna in prosecution is not to be equated with the fall out of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err in human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of ant such latches or mistakes during the conducting of a case cannot be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be sh treated as irreparable lacuna. No party in a trial can be foreclosed e from correcting errors. If proper evidence was not adduced or a ad relevant material was not brought on record due to any inadvertence, Pr the Court should be magnanimous in permitting such mistakes to be rectify. After all, function of the criminal Court is administration of a criminal justice and not to count errors committed by the parties or to hy find out an declare who among the parties performed better.
ad
12. In the case of State of NCT (Delhi) Vs. Shivkumar Yadav M reported as (2016) 2 SCC 402, the Apex court has also while dealing the provision of Section 311 held that, the plea of recall has to be of bonafide. Recall cannot be allowed on plea that defence counsel was not competent and not effectively cross-examined witness. Recall is rt not a matter of course and discretion given to the Court has to be ou exercised judiciously to prevent failure of justice and not arbitrarily. C
13. In the case of Rajendra Prasad Vs. Basheer reported as h AIR 2001 SC 3524, it is held that, revision filed under Section 397 of ig the Cr.P.C. is dismissed as not pressed. Subsequent, petition under H Section 482 of Cr.P.C. for the same relief does not lie.
14. In view of the aforesaid discussion made, the present proceeding is manifestly is not maintainable as revision was earlier not pressed. The argument forwarded by the respondent's counsel is that, if the complainant is allowed to be examined again, the petitioner would also make statements.
15. Keeping in view the shortcoming in the cross-examination which would be adverse to the interest of respondent cannot be ruled out. Hence, this petition is dismissed.
Digitally signed by RASHMI RONALD VICTOR Date: 2018.04.24 15:44:01 -07'00'(SUSHIL KUMAR PALO) JUDGE RS e sh ad Pr a hy ad M of rt ou C h ig H