The court emphasized that recalling witnesses under Section 311 of Cr.P.C. requires strong reasons and cannot be used to fill procedural lacunae.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL nd ON THE 22 OF MAY, 2025 MISC. CRIMINAL CASE No. 23026 of 2025 VIPIN BEN Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Ashutosh Joshi - Advocate for the petitioner.

Shri D.K. Shukla - Panel Lawyer for the respondent/State.

ORDER Heard on I.A. No.12318/2025 is an application for urgent hearing during summer vacation.

On due consideration, I.A.No.12318/2025 is allowed and petition is taken up for hearing.

1. This petition under Section 482 of Cr.P.C/528 of Bhartiya Nagrik Suraksha Sanhita, 2023 has been filed by the accused Vipin Ben to invoke extra ordinary jurisdiction of this Court being aggrieved and dissatisfied by the order dated 06.02.2025 passed by XXVII Additional Sessions Judge, District Jabalpur (M.P.) in ST No.455/2023 (State of M.P Vs. Vipin Ben & Others) for commission of offence under Section 302/34 of IPC, whereby application under Section 311 of Cr.P.C/348 of BNSS, 2023 to recall prosecution witness Nikesh Banjara (PW-7) has been dismissed.

2. Facts of the case, in short are that on 19.05.2023 at about 02:00 A.M Anil Sahu brother of the deceased Gopal Sahu gave a Dehati Nalishi to Signature Not Verified Police stating that on 18.05.2023, at about 09:30 P.M Paras Sahu informed him that some unknown persons have committed murder of his brother Gopal Sahu hitting by heavy stone and his dead body is lying near culvert. Paras Sahu further disclosed that Vipin Ben, his brother Tapan Ben and Pratap Balmik on 18.05.2023, had assaulted Gopal Sahu by means of heavy stone and have committed his murder. After investigation charge sheet has been filed.

3. On 19.07.2024, Nikesh Banjara (PW-7) was examined and cross-

examined by the counsel for the applicant/accused and was discharged. On 24.01.2025, an application under Section 311 of Cr.P.C/348 of BNSS, 2023 was filed by the accused to recall the said witness for further cross- examination as previous counsel failed to offer proper suggestions to him in cross-examination, it was also submitted that effective cross-examination was not done, therefore, it was prayed that witness Nikesh Banjara (PW-7)

be recalled for further cross-examination.

4. Application under Section 311 of Cr.P.C/348 of BNSS was dismissed by the impugned order dated 06.02.2025 by the learned Additional Sessions Judge observing that witness has already been effectively examined and cross-examined, therefore, he cannot be recalled for further cross- examination to fill up the lacuna left in the case. Hence this petition has been filed to set-aside the impugned order.

5. Learned counsel for the petitioner has submitted that witness Nikesh Banjara (PW-7) being eye witness is an important witness and his evidence will have material impact on the decision of the case, but previous Signature Not Verified counsel has not effectively cross-examined him, he has not, offered even necessary suggestions to the witness to put up the defence case, therefore, it was not just and proper on the part of the learned Additional Sessions Judge, to dismissed his application to recall witness Nikesh Banjara (PW-7) for further cross-examination.

6. On the other hand learned counsel for the State has opposed the prayer made by the learned counsel for the petitioner and has supported the impugned order passed by the learned XXVII Additional Sessions Judge.

7. I have carefully considered the rival submission advanced by the learned counsel for the parties and also the impugned order and material available on record.

8. The nature and scope of the power exercised by the Court under Section 311 of Cr.P.C. was elaborately considered in the case of Raja Ram Prasad Vs. State of Bihar and another, 2013(14) SCC 461 and it was held that the power under Section 311 of Cr.P.C. must therefore, be invoked by the Court