ORDER

1. With the consent of learned counsel for both the parties, the matter has been heard finally.

The present petition u/S 482 of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.”), has been filed seeking quashment of order dated 16.1.2023 passed by the 1st Additional Sessions Judge and Special Judge, Vyapam, Indore (M.P.) in Session Trial No.714/2014, whereby, the learned Trial Court has rejected an application u/S 311 of Cr.P.C. filed by the petitioner and others.

2. Sessions Trial No.714/2014 is pending before the learned trial Court for the offence u/S 419, 420, 467, 468, 471 and 120 B of the Indian Penal Code, 1860 (in short “IPC”) and section 3/4 of the Madhya Pradesh Recognized Examinations Act against the petitioner and others, and the aforesaid sessions trial was fixed on 24.1.2023 for defence evidence.

3. On 5.1.2023, the petitioner Ankit Kothari and co-accused persons, Dilip and Devendra had filed an application u/S 311 of Cr.P.C. stating that earlier Shri Ranjan Sharma, Advocate had represented the co-accused Jitendra Kain and subsequently he was appointed as special public prosecutor in the matter and representing the State in the aforesaid sessions trial. A writ petition No.7086/2022 was filed before this High Court for challenging the appointment of Shri Ranjan Sharma, Advocate as special public prosecutor to represent the State in the same matter in which earlier he was representing one of the accused, but when this fact came to the knowledge of Shri Ranjan Sharma, Advocate, he gave resignation from the post of special public prosecutor.

4. The petitioner further alleged that Shri Ranjan Sharma, Advocate as a special public prosecutor has examined prosecution witness, PW/8 – last prosecution witness. The possibility cannot be ruled out that Shri Ranjan Sharma, Advocate has asked questions to the prosecution witnesses, which might be favourable to his client/accused earlier to whom he was representing, and there are higher chance that he had asked the questions which are against other co-accused persons which is against the principle of natural justice and settled principles of law. The aforementioned witnesses have been cross-examined earlier by Shri Ranjan Sharma, Advocate on behalf of the co-accused Jitendra Kain, and it seems that he had asked questions to the prosecution witnesses, which are more favourable to co-accused Jitendra Kain, hence, the bias cannot be ruled out, therefore further examination of witnesses is necessary to bring out the truth, hence, in the interest of justice PW 8 to last prosecution witness may kindly be called for further cross-examination.

5. The petitioner, alongwith this petition has not filed copy of reply of the application u/S 311 of Cr.P.C., filed by the respondent/State before the learned trial Court, but it is mentioned in the impugned order that the respondent/State has filed reply of application u/S 311 of Cr.P.C. and objected that the accused persons were well aware of the fact that Shri Ranjan Sharma, Advocate has been working as special public prosecutor, despite no objection was made before the learned trial Court. Hearing of case is at final stage and the accused persons have filed the application to cause delay in early disposal of the case.

6. From perusal of the impugned order, it appears that an objection was filed before the learned trial Court in respect of appointment of Shri Ranjan Sharma, Advocate as special public prosecutor which was decided by the learned trial Court on 9.3.2022. Learned trial Court while passing the impugned order has observed that the accused persons had knowledge that Shri Ranjan Sharma, Advocate was representing the State as special public prosecutor, but at the time of examination of witnesses, they had not raised any objection before the trial Court. During trial, the accused persons had cross-examined the witnesses at length but at the time of examination of the witnesses, they had also not objected, therefore, it doe