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Rajesh Kushwah vs The State Of Madhya Pradesh Thr on 26 February, 2018

1 MCRC No.3873/2018
(Rajesh Kushwah Vs. State of M.P.)

Gwalior, Dated : 26/02/2018
Shri Sunil Kumar Dubey, Advocate for applicant.
Shri G.S. Chauhan, Public Prosecutor for
respondent/State.

This application under Section 482 of Cr.P.C. has been
filed against the order dated 26/10/2017 passed by the First
Additional Sessions Judge, Vidisha in Special Sessions Trial
No.27/2017 by which the application filed by the applicant
under Section 311 of Cr.P.C. has been dismissed.

The necessary facts for disposal of the present
application in short are that the father of the prosecutrix lodged
a report in the Police Station Gyaraspur on 7/4/2017 that her
daughter aged about 12 years and 7 months is missing and he
suspected that the applicant must have enticed her and must
have kidnapped her. On the basis of said report, offence under
Sections 363 and 366-A of IPC was registered. Prosecutrix
was recovered and on the basis of the allegations made by her
in her case diary statement, an offence under Section 376 of
IPC was also registered. The police after concluding the
investigation, filed the charge-sheet.

The prosecutrix was examined and cross-examined.
Thereafter, the applicant filed an application under Section 311
of Cr.P.C. seeking recall of the prosecutrix on the ground that
initially he had appointed Shri Kaushal and Shri Ashish Jain,
Advocates, but those counsel were engaged just for
understanding the case. The prosecutrix has suppressed the
material facts and she has deposed under the instruction of her
counsel and, therefore, she has also not replied to certain
questions asked by the defence counsel and had kept quiet.
Thus, the prosecutrix has tried to suppress the fact and,
2 MCRC No.3873/2018
(Rajesh Kushwah Vs. State of M.P.)

therefore, her further cross-examination is necessary. The said
application was rejected by the trial court by order dated
26/10/2017 on the ground that full opportunity was given to the
counsel for the applicant and recall of the witness is not
required.

Challenging the order passed by the trial court, it is
submitted by the counsel for the applicant that the evidence of
the prosecutrix is suspicious and she has not narrated the truth
before the trial court and under these circumstances, she is
required to be recalled for further cross-examination.

Per contra, it is submitted by the State counsel that the
prosecutrix was cross-examined by a senior lawyer and full
opportunity was given to the applicant to cross-examine the
witness. It is the self assessment of the applicant that the
evidence of the prosecutrix is suspicious or was tutored by the
counsel. The witness cannot be recalled unless and until the
applicant points out that further cross-examination of the
witness is essential to the just decision of the case. It is further
submitted that the trial court has rightly rejected the application
filed under Section 311 of Cr.P.C.

Heard learned counsel for the parties.
The applicant has not placed copy of the application filed
under Section 311 of Cr.P.C. on record. However, from the
facts mentioned in the rejection order, the applicant has
submitted that in the evidence, the prosecutrix has not narrated
the correct facts, but she was under tutoring by her counsel
and, therefore, a false evidence has been given by her and
under these circumstances, it is necessary for the just decision
of the case to recall the witness, so that she can be further
cross-examined.

3 MCRC No.3873/2018

(Rajesh Kushwah Vs. State of M.P.)

Section 311 of Cr.P.C. reads as under:-

311. Power to summon material witness,
or examine Person Present:- Any Court
may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any
person as a witness, or examine any person
in attendance, though not summoned, as a
witness, or recall and re-examine any person
already examined ; and the Court shall
summon and examine or recall and re-
examine any such person if his evidence
appears to it to be essential to the just
decision of the case.

Thus, from the plain reading of this Section, it is clear
that the witness cannot be recalled unless and until the Court
comes to the conclusion that his/her further cross-examination
is necessary to the just decision of the case. The applicant has
not pointed out any circumstance to indicate that full
opportunity was not given to the applicant to cross-examine the
witness. The witness was cross-examined by a Senior
Advocate of the Bar. Nothing could be pointed out by the
counsel for the applicant from the deposition of the prosecutrix
that as to how he is of the view that she has not narrated the
correct facts. A witness cannot be recalled merely on the
saying of an accused.

The Supreme Court in the case of Rajaram Prasad
Yadav Vs. State of Bihar and another reported in (2013) 14
SCC 461 has held as under:-

16. Again, in an unreported decision rendered
by this Court dated 8-5-2013 in Natasha Singh v.

CBI, (2013) 5 SCC 741, where one of us was a
party, various other decisions of this Court were
referred to and the position has been stated as
under in paras 15 and 16: (SCC pp. 748-49)
“15. The scope and object of the provision
is to enable the court to determine the truth
4 MCRC No.3873/2018
(Rajesh Kushwah Vs. State of M.P.)

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 under
Section 311 CrPC 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
under Section 311 CrPC 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.

16. Fair trial is the main object of criminal
procedure, and it is the duty of the court to
ensure that such fairness is not hampered or
threatened in any manner. Fair trial entails
5 MCRC No.3873/2018
(Rajesh Kushwah Vs. State of M.P.)

the interests of the accused, the victim and of
the society, and therefore, fair trial includes
the grant of fair and proper opportunities to
the person concerned, and the same must
be ensured as this is a constitutional, as well
as a human right. Thus, under no
circumstances can a person’s right to fair trial
be jeopardised. Adducing evidence in
support of the defence is a valuable right.
Denial of such right would amount to the
denial of a fair trial. Thus, it is essential that
the rules of procedure that have been
designed to ensure justice are scrupulously
followed, and the court must be zealous in
ensuring that there is no breach of the same.
[Vide Talab Haji Hussain v. Madhukar
Purshottam Mondkar, AIR 1958 SC 376,
Zahira Habibulla H. Sheikh v. State of
Gujarat, (2004) 4 SCC 158, Zahira
Habibullah Sheikh (5) v. State of Gujarat,
(2006) 3 SCC 374, Kalyani Baskar v. M.S.
Sampoornam, (2007) 2 SCC 258, Vijay
Kumar v. State of U.P., (2011) 8 SCC 136
and Sudevanand v. State, (2012) 3 SCC

387.]”

17. From a conspectus consideration of the
above decisions, while dealing with an application
under Section 311 CrPC 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 CrPC should ensure that
the judgment should not be rendered on inchoate,
inconclusive and 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.

6 MCRC No.3873/2018

(Rajesh Kushwah Vs. State of M.P.)

17.4. The exercise of power under Section 311
CrPC 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 CrPC
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 safeguard, 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
7 MCRC No.3873/2018
(Rajesh Kushwah Vs. State of M.P.)

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 CrPC 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.
If the facts of the case are considered in the light of the
proposition of law laid down by the Supreme Court in the case
of Rajaram Prasad Yadav (supra), then it is clear that except
saying that the prosecutrix has given a tutored evidence,
nothing has been pointed out that as to how recall of the
witness is necessary in the interest of justice.

Considering the facts and circumstances of the case, this
Court is of the considered opinion that the trial court did not
commit any mistake in rejecting the application filed under
Section 311 of Cr.P.C. Accordingly, the order dated 26/10/2017
passed by the First Additional Sessions Judge, Vidisha in SST
No.27/2017 is hereby affirmed.

The application fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge
Arun*
Digitally signed by ARUN KUMAR MISHRA
Date: 2018.02.27 17:00:58 +05’30’

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