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2018 Supreme(MP) 23
IN THE HIGH COURT OF MADHYA PRADESH
Sushil Kumar Palo, J.
Manoj Kumar v. State of M.P.
Miscellaneous Criminal Case No. 1148 of 2018 (J);
Decided on 17.1.2018*
Headnote:(1) Criminal P.C., 1973 -- Ss. 311 and 91 -- prosecution witness was cross-examined by counsel for petitioner/accused at length -- petitioner sought to recall that prosecution witness as certain questions could not be asked -- witnesses cannot be expected to face hardship of appearing in Court repeatedly -- petitioner’s application for recall of witness rightly dismissed. (2016)2 SCC 402 followed. [Paras 13 & 15
(2) Constitution of India -- Art.21 -- fair trial has to be seen not only from the point of view of accused but also from the point of view of victim and society. [Para 14
¼1½ naM izfØ;k lafgrk] 1973 & /kkjk 311 rFkk 91 & ;kph@vfHk;qä ds dkmUlsy }kjk vfHk;kstu lk{kh dh izfrijh{kk foLrkj ls dh xbZ & ;kph us ml vfHk;kstu lk{kh dks iqu% cqykus dh bZIlk dh D;ksafd dfri; iz'u iwNs ugha tk lds Fks & lk{khx.k ls ckjEckj U;k;ky; esa milatkr gksus dh dfBukbZ dk lkeuk djus dh vis{kk ugha dh tk ldrh & lk{kh dks iqu% cqykus ds fy, ;kph dk vkosnu Bhd gh [kkfjtA ¼2016½ 2 ,l lh lh 402 vuqlfjrA ¼iSjk 13 ,oa 15½
¼2½ Hkkjr dk lafo/kku & vuqPNsn 21 & _tq fopkj.k vfHk;qä ds n`f"Vdks.k ls ugha vfirq ihfM+r rFkk lekt ds n`f"Vdks.k ls Hkh ns[kk tkuk gksrk gSA ¼iSjk 14½
1. This petition under section 482 CrPC has been preferred to invoke the extraordinary jurisdiction of this Court and to set aside the order dated 19.12.2017, passed by the Special Judge, NDPS Act, Dindori in Special Case No. 3/2016, wherein the application under section 311 of CrPC, filed by the petitioner/accused has been dismissed.
2. Bereft of the unnecessary details, the facts requisite for disposal of this petition are that the petitioner is facing trial under sections 8(b) and 20 of the NDPS Act. In the criminal proceeding, the statement of Shri S.L. Markam (PW6) has been recorded on 12.6.2017. During the course of cross-examination on behalf of the petitioner an application under section 91 of the CrPC has been filed. Therefore, the cross-examination of S.L. Markam (PW6) was deferred. Subsequently, his further cross-examination was recorded on 21.8.2017 and he was cross-examined by the counsel for accused persons at length. The petitioner/accused filed an application under section 311 of the CrPC on 25.9.2017, stating that S.L. Markam (PW6) be recalled for further cross-examination as certain questions including the identification, weighing panchnama, samras panchnama, seizure panchnama, sampling panchnama, sealed panchnama, reaching the spot panchnama, talashi panchnama, mukhbir panchnama and search warrant etc could not be asked.
3. The learned trial Court vide the impugned order held that cross-examination has been recorded at length.
4. Earlier counsel Shri Siddharth Shukla cross-examined the witness on all issues. Hence further cross-examination in this regard is not justified. Therefore, the application is dismissed.
5. The petitioner has preferred this petition on the ground that the petitioner is facing trial for NDPS offence. Therefore, it is very “essential to call S.L. Markam (PW6) who prepared the pachnama as mentioned above. Hence, the application filed by the petitioner deserves to be allowed in the interest of justice. In this regard, he placed reliance on Natasha Singh v. Central Bureau of Investigation (State), 2013 CrLJ 3346(SC) and P. Sanjeeva Rao v. State of Andhra Pradesh [(2012)7 SCC 56].
6. Per contra, learned G.A for the respondent/State opposed the contentions and submits that the S.L. Markam, I.O has been thoroughly cross-examined by earlier engaged counsel Shri Siddharth Shukla. Therefore, further cross-examination in this regard is not proper. It is also contended that for filling up the lacunae, witness should not be called for further cross-examination and the witness was examined earlier on 12.6.2017 and on 21.8.2017. Again the accused/petitioner further pray to cross-examine, which is not fair.
7. Perused the record.
8. The cross-examination of the witness S.L. Markam (PW6) was deferred earlier because of the application under section 91 CrPC filed by the petitioner on 12.6.2017. Subsequently, his examination was conducted on 21.8.2017.
9. No doubt that fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself. Merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer as has been held in Maria Margarida Sequeria Fernandes and others v. Erasmo Jack de Sequeria (Dead) through LRs [2012(3) SCALE 550].
10. But in the present case at the request of the petitioner/accused once the case was adjourned and later cross-examination was conducted at length. In the case of Natasha Singh v. Central Bureau of Investigation (State), (supra), Ho'ble the apex Court has held that :
"trial Court cannot prejudge evidence of witnesses sought to be examined." Hence, the case of Natasha v. CBI (supra), is not attracted in the present case, as in that case request was made for calling
