Rahul Dubey vs State of M.P.

Brij Kishore Dube, J.—Heard on the question of admission and perused the record. This Criminal Revision under Sections 397 and 401 of

Cr. P.C. is preferred by the petitioner herein/accused against the order dated 26.06.2013 passed in Sessions Trial No. 18/2012 by VII Additional

Sessions Judge/Special Judge, Gwalior by which an application u/s 311 of Cr. P.C. filed by the prosecution has been allowed.

Short facts of the case are that the petitioner herein/accused is facing a criminal trial alongwith other co-accused bearing Sessions Trial No.

18/2012 before VII Additional Sessions Judge/Special Judge, Gwalior for the offence punishable under Sections 364-A, 365, 302 read with 34 of

IPC & 11/13 of Madhya Pradesh Dakaiti Avam Vyapharan Prabhavit Kshetra Adhiniyam. On 19.06.2013, an application u/s 311 of Cr. P.C.

has been preferred by the prosecution for calling the scriber of rojnamcha sanha for his examination. By the impugned order, the application was

allowed.

Shri Narendra Dubey, learned counsel for the petitioner submitted that the prosecution has filed the application on the date i.e., on 19.06.2013

when the case was fixed for pronouncement of judgment, for filling up a lacuna existing in the case of the prosecution and, therefore, at that stage

such an order was uncalled for. It is further submitted that on 24.04.2013, when the case was fixed for final arguments, the Trial Court marked

Exhibit P-39 on the FSL report, and subsequently the case was fixed for hearing the final arguments and on 10.05.2013 arguments heard,

thereafter, the case was fixed for judgment i.e., on 24.05.2013. On 24.05.2013, the case was adjourned. The learned Trial Court committed

grave error in allowing the application u/s 311 of Cr. P.C. of the prosecution by the impugned order. Learned counsel placed reliance on the

following decisions:-

(i) Mubarique Shah v. State of M.P., 2001 (2) MPWN 177; and

(ii) Saodhan Vs. State of Madhya Pradesh and others,

Learned Public Prosecutor argued in support of the impugned order.

From a bare perusal of the impugned order, it is transpired that on 19.06.2012 an entry was made in the rojnamcha sanha regarding the

departure of Head Constable alongwith constables by vehicle No. MP-03-5646 for routine checking towards Gorhi Mangarh and subsequent to

their arrival, the entry was also made in the rojnamcha sanha. A copy of the aforesaid rojnamcha sanha was filed alongwith the challan and

supplied to the accused, however, the entries were not proved, therefore, an application u/s 311 of Cr. P.C. was made by the prosecution for

calling the scriber of the rojnamcha sanha to prove the aforesaid entries.

The scope and object of the provisions of Section 311 of Cr. P.C. has been recently examined by the Hon''ble Apex Court in the case of

Natasha Singh Vs. CBI (State), and held as under:-

The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant

facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or

arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application u/s 311 Cr.P.C. must not be

allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious

prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received

as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the

evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the

other party. The power conferred u/s 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 great caution and circumspection. The very use of words such as ""any court"", ""at any stage"", or

or any enquiry, trial or other proceedings"", ""any person"" and ""any such person"" clearly spells out that the provisions of this section have been

expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be

obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said

witness is in fact, essential to the just decision of the case.

In Mubarique Shah (supra), this Court held that failure of putting any question during the cross-examination does not mean that proper

opportunity to cross-examination was not given and cannot be a ground to recall the witnesses which obviously will amount to filling up the lacuna.

No doubt the Court has unbridled power to resummon the witness before the conclusion of the trial but that discretion has to be exercised on

sound judicial discretion. In Saodhan (supra), this Court held that when the trial Court tried its best to give all possible assistance and opportunity

to the prosecution for procuring the presence of the witnesses. If the prosecuting agency fails to avail the opportunities and privileges granted to it

by the Court, then again no person has authority to ask the Court to exercise its discretionary powers u/s 311 of Cr. P.C. For summoning the

aforesaid witnesses. These cases relied upon by the learned counsel for the petitioner are not helpful to him at this stage.

In view of the law laid down by the Hon''ble Apex Court in the case of Natasha Singh (supra) and facts of the case in hand, I do not find any

infirmity and illegality in the impugned order that may call for any interference in exercise of the revisional jurisdiction under Sections 397 read with

401 of Cr. P.C., This revision petition is devoid of merit and is therefore, dismissed. However, looking to the facts of the case, the learned Trial

Court is directed to expedite the disposal of the case, in accordance with law. With the aforesaid, this revision petition stands disposed of.