Shashikant Sharma vs The State of Madhya Pradesh

N.K. Gupta, J.—Heard the learned counsel for the parties finally. The applicants have moved the present revision against the order dated 5.5.2009 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act, Rewa whereby it is directed that Dr. S.K. Shukla, Dr. S.K. Pathak, Constable Gulsher Ahmed, S.S. Pawar and Vidhya Tiwari may again be called for their examination as a prosecution witnesses before the trial Court.

The brief facts of the case are that the trial of the offence punishable under Sections 294, 506, 323/ 34 (three counts) of IPC and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act was pending before the Special Court, Rewa at Special Case No. 36/2007. The entire prosecution evidence was over and after hearing the learned counsel for the parties finally the case was fixed for judgment on 29.4.2009. After giving two adjournments, the judgment was not pronounced and on 2.5.2009 the learned Special Judge has mentioned that after perusal of the case diary, it appears that some witnesses are to be examined again, and therefore vide order dated 5.5.2009 the learned trial Court suo-motu directed to call the aforesaid witnesses.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the first MLC reports of the victims namely Mojilal, Tersi and Sapna were proved by Dr. S.K. Pathak (PW-6) as Ex. P-9, Ex. P-10 and Ex. P-11, and therefore if such victims were examined again on the requisition given by the SHO, AJAK, Rewa, then subsequent examination has no any affect on the primary evidence. If the FIR was lodged at Police Station, Sagera and the victims were examined by Dr. Pathak and there was no charge of any grave injury, then if any doctor had examined the victims subsequently, then subsequent report is not at all relevant in the case. Similarly, the learned Special Judge did not possess the powers u/s 482 of Cr.P.C., and therefore suo-motu order cannot be passed once the evidence was closed, then there was no need to the Special Judge to call and peruse the case diary to pass a suo-motu order. The criminal court cannot review its own order. If the prosecution evidence is closed, then without any application from the side of the prosecution, such type of a case cannot be reopened. Looking to the conduct of the Presiding Officer, it appears that in 2-3 given dates, she could not write the judgment, and therefore case was reopened. Hence the learned Special Judge has committed a grave error in passing the impugned order dated 5.5.2009, which cannot be maintained.

On the basis of the aforesaid discussion, the present revision filed by the applicants can be accepted. Consequently, it is hereby accepted. The impugned order dated 5.5.2009 passed by the learned Special Judge, Rewa in Special Case No. 36/2007 is hereby set aside. The trial Court is directed to hear the final arguments of the parties again and decide the matter in accordance with law.

A copy of this order be sent to the trial Court along with its record for information and compliance. One PUD from the trial Court is received to get its original record. Since the order for return of the record has already been passed, therefore that PUD is hereby disposed off being infructuous.