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2024 Supreme(Online)(MP) 2128
HIGH COURT OF MADHYA PRADESH
SHRI JUSTICE ANAND PATHAK, J
Bhupesh Kumar Verma – Appellant
Versus
Ramavtar Singh Narwarriya – Respondent
MCRC 17770/2024
Jitendra Tripathi,
The trial Court's discretion under Section 311 of Cr.P.C. to summon witnesses is upheld when no manifest illegality or procedural impropriety is shown.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 311 and 482 - Quashment of order - Petition seeking to summon complainant for cross-examination dismissed as not maintainable - Trial Court found sufficient opportunities had been availed by petitioner for cross-examination, and the conduct of the petitioner was dilatory - Revisional Court upheld dismissal of revision petition. (Paras 1, 6, 8)
(B) Discretionary Powers - The invocation of powers under Section 311 is discretionary, and the trial Court's decision is upheld when no manifest illegality or procedural impropriety is shown. (Paras 7, 8)
Facts of the case:
The petitioner sought to quash the order dismissing his application to summon the complainant for cross-examination, arguing that his counsel's absence due to a family event denied him the opportunity to cross-examine a key witness. (Paras 1, 2)
Findings of Court:
The trial Court found that the petitioner had previously availed multiple opportunities to cross-examine the complainant and had engaged in dilatory tactics, justifying the dismissal of the application. (Paras 5, 6)
Issues: The main issues were whether the trial Court erred in dismissing the application under Section 311 and whether the Revisional Court correctly dismissed the revision as not maintainable. (Paras 6, 8)
Ratio Decidendi: The court ruled that the trial Court's discretion under Section 311 was appropriately exercised, and no grounds for interference were established under Section 482. (Paras 7, 8)
Result: Petition dismissed.
1. The present petition under Section 482 of Cr.P.C . has been preferred by the petitioner seeking quashment of the order dated 04-03-2024 passed by the Revisional Court (XV Additional Sessions Judge, Gwalior) in Criminal Revision No.60/2024 whereby the revision preferred by the petitioner against the order dated 10-02-2024 passed by JMFC, Gwalior has dismissed as not maintainable. Vide order dated 10-02-2024 the trial Court dismissed the application of the petitioner under Section 311 of Cr.P.C . seeking summoning of complainant for cross- examination.
2. It is the submission of learned counsel for the petitioner that the date on which case was fixed for examination of complainant Ramavtar Singh Narwariya on that day since counsel for the petitioner was busy in the marriage of his family, therefore, complainant could not be examined, which resulted into closure of right of petitioner to cross-examine the complainant. Since complainant is the prime/material witness in the matter and if he is not allowed to be cross-examined, then the case of petitioner/accused will be suffered adversely. The trial Court did not consider the problem of counsel for the petitioner. Valuable right of the petitioners is at peril. Therefore, in order to prove his innocence, petitioner moved an application under Section 311 of Cr.P.C . seeking summoning of complainant for cross-examination before the trial Court which was wrongly dismissed by the trial Court. Thus, prayed for setting aside the impugned order.
3. Heard.
4. This is a case where petitioner is seeking summoning of complainant – Ramavtar Singh Narwariya for cross-examination.
The case was fixed for examination of complainant on 06-12- 2023 but counsel for the petitioner did not cross-examine the complainant on the pretext of marriage in his family. From perusal of order-sheets of trial Court, it is clear that prior to 06- 12-2023 counsel for the petitioner has already availed several opportunities to cross-examine the complainant and he has preferred various interlocutory applications with a view to protract the trial of the case. Because of dilatory tactics of petitioner's counsel, cost was also imposed by the trial Court but petitioner did not mend his ways.
5. The trial Court considered the application preferred by the petitioner under Section 311 of Cr.P.C . and found that sufficient opportunities have already been availed by the petitioner and earlier cost has also been imposed upon him for protracting the trial of the case. In the case in hand, complainant is 60 years old and he remained present on several occasions for getting himself cross-examined but petitioner's counsel failed to do so. This shows dilatory tactics of petitioner and seriousness of the petitioner to cross-examine the complainant.
6. So far as the Criminal Revision preferred by the petitioner is concerned, the same was rightly dismissed by the Revisional Court as not maintainable in view of Section 391(2) of Cr.P.C . as against the order of rejection of application under Section 311 of Cr.P.C . no revision is maintainable.
7. Perusal of Section 311 of Cr.P.C . indicates that it deals in respect of three exigencies viz.(i) trial Court may summon any person as a witness; (ii) trial Court can summon any person in attendance, though not summoned as a witness; or (iii) recall and re-examine any person already examined. Invocation of powers under Section 311 of Cr.P.C . by the trial Court is discretionary in nature and the trial Court dismissed the application of the petitioner by elaborating the conduct of petitioner.
8. In the conspectus of facts and circumstances of the case, no manifest illegality, procedural impropriety or palpable perversity is reflected in the impugned orders. No cogent ground has been pointed out by counsel for the petitioner to show indulgence in the case in hand. Thus, no case for interference is made out under the limited scope of Section 482 Cr.P.C . Petition sans merits and is her
