M.Cr.C. No. 11624/2016. Case: Paijaram and Ors. Vs State of M.P. and Ors.. High Court of Madhya Pradesh (India)

Case NumberM.Cr.C. No. 11624/2016
CounselFor Appellant: Gagan Sharma, Adv. and For Respondents: Prakhar Dhengula, Panel Lawyer
JudgesGurpal Singh Ahluwalia, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 311, 482; Constitution of India - Article 21; Indian Evidence Act, 1872 - Section 138; Indian Penal Code 1860, (IPC) - Sections 302, 307, 34
Judgement DateJanuary 20, 2017
CourtHigh Court of Madhya Pradesh (India)


Gurpal Singh Ahluwalia, J.

  1. This application under Section 482 of Cr.P.C. has been filed against the order dated 31-8-2016 passed by 2nd A.S.J., Dabra in S.T. No. 132/2016 by which the application filed by the applicants under Section 311 of Cr.P.C. for recalling Balli (P.W. 1) and Mathura Bai (P.W. 2) has been rejected.

  2. The facts necessary for the disposal of this application are that the applicants are facing trial for offences punishable under Sections 302 and 307/34 of I.P.C. Balli (P.W. 1) and Mathurabai (P.W. 2) were examined by the prosecution and they were cross examined in detail by the Counsel for the applicants. At the later stage, the applicants filed an application under Section 311 of Cr.P.C. for recalling Balli (P.W. 1) and Mathurabai (P.W. 2) for further cross examination on the ground that earlier Shri B.S. Thakur, Junior to Shri Mukesh Parashar, Advocate had cross examined these witnesses on behalf of the applicants, however, certain important questions could not be put to these witnesses therefore, now Balli (P.W. 1) and Mathurabai (P.W. 2) may be recalled.

  3. The application was opposed by the Prosecution and the Trial Court by order dated 31-8-2016, rejected the application.

  4. The Counsel for the applicants submit that the Counsel who was earlier engaged by the applicants could not put several questions on the material aspects, therefore, the applicants were left with no other option but to change their Counsel and because of the inability of their earlier Counsel, they may not be put to an disadvantageous position as free and fair Trial is the cardinal principle of Criminal jurisprudence.

  5. Per Contra, the Counsel for the State submits that although the free and fair trial is the cardinal principle of Criminal jurisprudence, but the applicants had engaged the Counsel of their own choice and the applicants were given full opportunity to cross examine the witnesses.

  6. Heard the learned Counsel for the parties.

  7. The moot question involved in the present case is that whether the Change in Counsel can be said to be a sufficient reason to recall a witness who has been examined in detail by the Counsel engaged by the applicants themselves.

  8. In the present case, the applicants have not placed the copy of the deposition sheet of Balli (P.W. 1) and Mathurabai (P.W. 2) on record. It is the contention of the applicants that the witnesses were cross examined by Shri B.S. Thakur, Advocate, an associate Counsel of Shri Mukesh Parashar, Advocate and therefore, several important questions could not be put to the witnesses. It is not the case of the applicants, that any adjournment was sought from the Court on the ground of non-availability of the Senior Counsel. It is also not the case of the applicants that Shri B.S. Thakur, Advocate was never engaged by them. It is also not the case of the applicants, that full opportunity was not given to the applicants to cross-examine the witnesses. Merely because, now the Counsel has been changed by the applicants, then that by itself would not be a good ground to recall the witnesses. The Supreme Court in the case of State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC has held as under:

    "10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions.

  9. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross-examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the court, for valid...

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