Point of Law: Accused filthy language and threatened to complainant - Power to summon material witness or examine - It is well settled by Hon’ble Supreme Court that lacuna cannot be fulfilled in garb of power conferred under Section 311 of Cr.P.C.

ORDER :

1. The petitioner has filed this petition under Section 482 of the Cr.P.C. against the order dated 17.03.2021 (Annexure P/1) passed by First Additional Sessions Judge, Bilaspur, District-Bilaspur (C.G.) in Criminal Revision No. 36/2021 (Yogesh Bajpai vs. State of Chhattisgarh), by which the order dated 27.10.2018 (Annexure P/2) passed by learned Judicial Magistrate First Class, Bilaspur, District-Bilaspur (C.G.) in Criminal Case No. 774/2013, has been affirmed and application filed by the petitioner under Section 311 of the Cr.P.C. has been rejected.

2. The brief facts as projected by the petitioner, are that a criminal case has been registered against the petitioner under Sections 294, 506 (Part-II), 323, 325, 332, 186 of I.P.C. for committing offence on 04.02.2011 at about 07:00 p.m. near Golbazar, Phool Chowk, P.S. City Kotwali, Bilaspur, as the petitioner had used filthy language and threatened to complainant-Umakant Kaushik and Irfan Ul Rahim Khan. Complainant-Umakant Kaushik police Constable and Irfan Ul Rahim Khan Deputy Superintendent of Police posted at traffic police station, Bilaspur, were discharging their duties being public servants.

3. The learned trial Court vide its order dated 27.10.2018 has held that the accused has committed offence under Sections 294, 353 and 332 of I.P.C. and sentenced to undergo simple imprisonment for 0 day, 1 year and 2 years and fine of Rs. 500/- and 1000/- and 1000/- respectively and in default of payment of fine to undergo further simple imprisonment for 7 days, 15 days and 15 days respectively.

4. The petitioner preferred an appeal before learned Sessions Judge, Bilaspur in which, learned First Additional Sessions Judge, Bilaspur vide order dated 18.02.2020 in Criminal Appeal No. 274/2018 set aside the order of punishment passed by the trial Court on account that the cross-examination of witness and Irfan Ul Rahim Khan has not been completed. Learned trial court has relied upon the incomplete evidence of the complainant and remanded the case with a direction to the learned trial court to give an opportunity to the petitioner to cross-examine the witness Irfan Ul Rahim Khan. After remand, the matter was put to retrial. The petitioner filed an application under Section 311 of the Cr.P.C. after cross-examination of Irfan Ul Rahim Khan, to recall both PW-1 Umakant Kaushik and PW-5 Lalit Kumar Dhritlahre for further cross-examination. It was contended in the application that the PW-1 and PW-5 though examined and cross-examined, but some question, which is relevant for adjudication of the trial, is required, therefore, they may be summoned as per provision of Section 311 of the Cr.P.C.

5. The learned trial court vide its order dated 24.02.2021 has rejected the application on the ground that the learned appellate court has remanded the case on the ground that witness Irfan Ul Rahim Khan has not been cross-examined and without cross-examination, evidence should not have been considered by the trial court while passing the judgment and accordingly, the application was rejected.

6. Being aggrieved with this order, the petitioner preferred a Criminal Revision No. 36/2021 before Sessions Judge, Bilaspur, which was heard by learned First Additional Sessions Judge, Bilaspur on transfer. The learned First Additional Sessions Judge, Bilaspur has rejected the Revision application stating that there is no irregularity and illegality in passing the order dated 24.02.2021. Thus, these orders have been challenged by filing the present Criminal Miscellaneous Petition under 482 Cr.P.C.

7. Learned counsel for the petitioner would submit that there is serious contradiction and omission in statement of PW-1 and PW-5, but some questions could not be asked from them, who are the main eye witnesses of the case, that is why when the matter was remanded back, the petitioner filed an application under Section 311 of the Cr.P.C. to recall them. He would further submit that the Revisional Court has also committed