Sanjay Sharma vs State Of Madhya Pradesh

The petitioner has preferred this application under Section 482 Cr.P.C., to invoke the extraordinary jurisdiction of this Court and to set aside order

dated 22.02.2018, passed by Sixth Additional Session Judge, Bhopal, in ST. No. 1029/2014, whereby the application for recalling the witnesses Kundan

Singh (PW.1), and Santosh Kumar Sahu (PW-6) has been disallowed.

 It would be appropriate to mention that the application as regarding P.W-5 AdeshChakrawarti has been allowed because counsel for the accused

Sanju alias Sanjay could not cross-examine him on 09.04.2015.

On behalf of the petitioner Sanju Sharma, it is contended that the petitioner was in custody, when the earlier order dated 06.04.2016 passed in M.Cr.C.

No. 1913/2016, therefore, he could not deposit the cost. It is also contended that subsequently on 19.07.2016 in M.Cr.C.No. 10811/2016 filed by

applicant was also dismissed for non-deposit of the amount of cost. It is claimed that the petitioner has not cross-examined, (PW-1) Kundan Singh and

(PW-6) Santosh Kumar Sahu, therefore cross-examination of these witnesses be allowed.

Counsel for the petitioner placed reliance on Vijay Kumar Vs. State of U.P. & another reported as 2011 (8) SCC 136, wherein the Apex Court has

held that the power under Section 311 is discretionary, which is complementary in nature of power under Section 165 of the Evidence Act, if the

witness is a material witness, opportunity should be provided.

Counsel for the petitioner has also placed reliance on Mannan Shaikh and others Vs State of West Bengal & another reported as 2014 (13) SCC 59,

Cr.A. No. 1307/2014, decided on 03.07.2014, the Apex Court has held that if the prosecution or defence has failed to produce some evidence

necessary for just and proper disposal of the case, the power under Section 311 Cr.P.C., can be exercised to subserve the cause of justice and public

interest.

Counsel for the petitioner has also placed reliance on Mannan Sheikh Vs. State of West Bengal 2014 (13) SCC 59, wherein it has been held that the

power under Section 311 Cr.P.C. can be exercised to form an opinion that after just decision of the case, recall or re-examination of witness was

necessary.

For recall of the witness in the present case, opportunity was afforded to the petitioner/accused earlier.

But the petitioner/accused playing truant has misused the same and delaying the procedure, hence, further recalling of witness is misused of the

provision by the applicant. Hence, the citations mentioned do not attract in the present case.

On behalf of the respondent/State the application is vehemently opposed, contending that the applicant Sanjay alias Sanju was given ample opportunity

for crossexamination.

Counsel for the accused Shri Mohd. Jabbar on the ground of ill-health expressed his inability to cross-examine by filing an application on 05.12.2015.

The learned trial Court elaborately described the circumstances, in which the applicant failed to cross-examine the witnesses. In earlier occasion

application for cross examination was allowed by imposing cost, but the witnesses could not be crossexamined. Therefore, further cross-examination

of witnesses were disallowed.

On behalf of the objector, it is contended that in earlier occasions also the petitioner’s application for crossexamination of PW-2, PW-3 and PW-4

was challenged by filing M.Cr.C. No. 10811/2016. The same was dismissed, whereas on 06.04.2016, this Court allowed the applicant to cross-

examine Animesh Pandey (PW-2), Rohit Gupta (PW3) and Nanakram (PW.4), but he failed to cross-examine these witnesses by not depositing the

cost.

It is further contended that the applicant is delaying the trial by some means or the other. The session trial is pending since 2014.

Counsel for the respondent has placed reliance on State of Haryana Vs Ram Mehar & others reported as 2016 (3) CCSC 1598 SC, in which the

Apex Court has held that Code of Criminal Procedure, 1973-Section 311 read with Section 231 (2) Recalling of witnesses for reexamination-Prayer

for-High Court annulled order of Additional Sessions Judge wherein he rejected prayer of accused persons seeking recall of witnesses-Legality

ofGrounds urged before trial Court fundamentally pertain to illness of counsel who was engaged on behalf of defence and his inability to put questions

with regard to weapons mentioned in F.I.R. and weapons referred to in evidence of prosecution witnesses- Held, prosecution examined all witnesses-

Statements of all accused persons recorded under Section 313- Defence also examined 15 witnessesfoundation for recall not even remotely makes

out a case that such recalling necessary for just decision of case or to arrive at truth- Number of lawyers engaged of their choiceIn such situation

recalling of witnesses indubitably cannot form foundation-High Court fallen into absolute error in axing order passed by trial Judge-Impugned order

passed by High Court set aside and order of trial Judge restored.

Perused the record. The applicant was denied to cross-examine Animesh Pandey (PW-2), Rohit Gupta (PW3) and Nanak Ram (PW-4). When this

order was challenged in M.Cr.C. No. 1913/2016, on 06.04.2016, petitioner Sanjay alias Sanju was directed to deposit the cost, but applicant failed to

deposit the cost and therefore could not cross-examine the witnesses. Therefore, another petition M.Cr.C. No. 10811/2016 was filed. The same was

dismissed on 19.07.2016.

Again the petitioner has filed an application for crossexamining the witnesses Kundan Singh (PW-1) and Santosh Kumar Sahu (PW-6). Vide order

dated 22.02.2018, the trial Court disallowed the same.

Keeping in view that the petition has been dismissed with regard to Animesh Pandey (PW-2), Rohit Gupta (PW3) and Nanakram (PW-4) request has

been renewed. The learned trial Court dismissed the same on 22.02.2018. Therefore, this fresh petition has been filed for recalling witnesses Kundan

Singh (PW-1) and Santosh Kumar Sahu (PW-6). The petitioner failed to cross- examine the witnesses on earlier occasions. The petitioner was

allowed to cross-examine, by imposing a cost of Rs. 500/- by the trial Court. The petitioner did not deposit the same. Therefore, the trial Court

disallowed him to cross-examine PW-2, PW-3 and PW-4. The petitioner filed M.Cr.C. Nos.10811/2016 and 1913/2016. In such circumstances, when

the petitioner filed M.Cr.C. before the High Court, at that time also he was in custody, it is not a good plea, that he could not deposit the cost for he

was in custody. It would be travesty of justice if the petitioner is allowed further time to cross-examine the prosecution witnesses. The petitioner

earlier also sought time and did not cross-examine and did not deposit the imposed cost. The petitioner has been prolonging the trial by some means or

the other. Therefore, this petition is dismissed with a cost of Rs. 2,000/-.