Rahul vs State Of Madhya Pradesh

The inherent powers of this Court u/S.482 of Cr.P.C. are invoked to assail interlocutory order dated 05.02.2019 passed by Special Judge (Atrocities) Gwalior, whereby an application u/S.311 of Cr.P.C. preferred by the accused/petitioner for recalling and re-examination of PWs namely Veer Singh (complainant), Anguri Devi, Dr. Vinod Arora and R.N. Banafar by assigning the reason that during recording of testimony of these witnesses, certain relevant questions were not put to them, has suffered dismissal.

Learned counsel for rival parties are heard on the question of admission.

The trial Court has dismissed the application primarily on the ground that reason assigned for recalling of aforesaid PWs appears to be an attempt to fill up the lacuna left behind in the prosecution evidence and, therefore, relying upon the decision in the case of Rajaram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461, the trial declined to accede to the request of recalling of PWs.

The reason assigned by the trial Court cannot be found fault with since power vested in the trial Court u/S.311 of Cr.P.C. is neither to fill up the lacuna left behind in the prosecution evidence nor to adduce additional or better evidence. The power vested in the trial Court u/S.311 of Cr.P.C. is though wide, but is circumscribed by the rider of recall/re-examination being essential for just decision of the case. The Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461 has laid down certain principles to be kept in mind by the trial Court while dealing with power u/S.311 of Cr.P.C. The relevant paragraph 17 of the said judgment is reproduced below:-

"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

17.1 Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

17.2 The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3 If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

17.4 The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5 The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6 The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7 The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8 The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

17.9 The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

17.10 Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

17.11 The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

17.12 The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

17.13 The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

17.14 The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right"

Testing the factual matrix attending the instant case on the anvil of the aforesaid law, it is evident that an attempt on the part of  petitioner/accused  while  requesting  for  recalling  and  re- examining of the aforesaid PWs, was to ask question which on account of inexperience and ineptitude of the defence counsel were not asked when these PWs were examined earlier. The principles culled out by the Apex Court in the case of Rajaram Prasad (supra) do not permit exercise of power u/S.311 Cr.P.C. for the purpose sought by the petitioner.

If the request of petitioner is accepted, then no trial would come to an end and the defence or prosecution, as the case may be, would keep invoking the power u/S.311 of Cr.P.C. to fill up lacunas in their evidence.

In the absence of any failure of justice noticed, this Court declines interference and dismisses the present petition u/S.482 of Cr.P.C.

Accordingly, present petition stand dismissed, sans cost.