The court affirmed that an application under S.233(3) of Cr.P.C. must be justified and not intended to circumvent prior orders under S.311.

1. The applicant has preferred the present revision against the order dated 23.11.2011 passed by the learned 4th Additional Sessions Judge, Katni in S.T. No.152/04, whereby the application filed by the applicant under S.233(3) of Cr.P.C. was dismissed.

2. The facts of the case, in short are that, the applicant is an accused in a murder trial pending before the trial Court. In that trial, the witnesses namely Arun Tiwari (PW - 9) and V.P. Singh were examined and cross - examinationed. Thereafter, an application under S.311 of Cr.P.C. was moved to recall these witnesses but the same was dismissed by the trial Court. Thereafter, an application under S.233(3) of Cr.P.C. was moved, which was dismissed by the trial Court by passing the impugned order.

3. I have heard the learned counsel for the parties.

4. The learned counsel for the applicant has submitted that the name of the applicant was not mentioned in the FIR and therefore, re - examination of the witnesses namely Arun Tiwari and V.P. Singh is necessary. The right given to the accused under S.233(3) of Cr.P.C. is absolute and the Court cannot deprive him from his rights. In support of his contention, the judgment of the Federal Court in the case of “ Sudhir Kumar Datt and others Vs. the King ” [AIR (36) 1949 Federal Court 6] is referred. Also the orders passed by the Single Bench of this High Court and various High Courts are referred. One judgment of Kerala High Court passed in the case of “ T.N. Janardhanan Pillai Vs. State ” [1992 Cri.L.J. 436] is also referred, whereas the order passed by the Single Bench of this Court in the case of “ Nyaju @ Niyaj Mohd. Vs. State of M.P. [2000 (1) J.L.J. 321] is also cited. Similarly, the order passed by the Single Bench of this Court in the case of “ Nand Lal S/o Dayaram Dewani and others Vs. State of Maharashtra ” [2007 (1) M.P.L.J. 84] is also referred. The learned counsel for the applicant has further submitted that the witness, who is examined as a prosecution witnesses may be recalled as a defence witness again and in support of this contention, the order passed by the Single Bench of this Court in the case of “ Harbhajan and others Vs. State of M.P. ” [1989 J.L.J. 217] is referred.

5. On the other hand, the learned Panel Lawyer has submitted that the scope of Provision under S.311 and S.233(3) of Cr.P.C. are different and the applicant cannot get that relief under the garb of Provision under S.233(3) of Cr.P.C. , which was refused under S.311 of Cr.P.C. and therefore, the learned Additional Sessions Judge has rightly dismissed the application filed by the applicant.

6. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that the application under S.311 of Cr.P.C. was moved to recall the aforesaid witnesses, which was rejected. Thereafter, an application under S.233(3) of Cr.P.C. was moved. It is true that the scope of both the sections is slightly different. If the provision of S.311 of Cr.P.C. is perused, which is as under: - “Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re - examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case”. Whereas, the provision of S.233(3) of Cr.P.C. is perused which is as under: - “If the accused applies for the issue of any pro