Madhya Pradesh High Court
Anand Raikwar vs The State Of Madhya Pradesh on 30 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:9524
1 MCRC-15639-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 30th OF APRIL, 2025
MISC. CRIMINAL CASE No. 15639 of 2025
ANAND RAIKWAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Ashfaq Khan - Advocate for applicant.
Mr. Mohit Shivhare - Public Prosecutor for respondent / State.
ORDER
This application under Section 528 of B.N.S.S. / 482 of Cr.P.C. has
been filed against the order dated 27.03.2025 passed by Second Additional
Sessions Judge to the Court of First Additional Sessions Judge, Datia in S.T.
No.28/2020 by which application filed by applicant for recall of Pritam Pal,
who is the prosecution witness, has been rejected.
2. It appears that Pritam Pal was examined on 07.09.2021. He was
cross-examined in detail by the counsel for applicant namely Shri Rajendra
Nagarch. It is not out of place to mention here that Shri Rajendra Nagarch is
the counsel who was engaged by the applicant himself. Thereafter, it appears
that applicant changed his counsel and engaged Shri Shivraj Singh Jat –
Advocate. Thereafter, an application under Section 311 of Cr.P.C. was filed
on 06.12.2024 for recall of prosecution witness Pritam Pal on the ground that
certain questions could not be put to the said witness. By the impugned
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order, said application has been rejected.
3. Challenging the order passed by the court below, it is submitted by
counsel for applicant that it is well established principle of law that a litigant
should not suffer on account of incompetency of his counsel. Applicant is
facing a trial for offence under Section 302 of IPC and Pritam Pal was the
solitary eye-witness and, therefore, if he is not recalled, applicant would
suffer irreparable loss.
4. Per contra, application is vehemently opposed by counsel for State.
5. Heard counsel for parties.
6. As already pointed out, Pritam Pal was cross-examined by Shri
Rajendra Nagarch – Advocate who was voluntarily engaged by applicant.
Only after the applicant change his counsel and engaged Shri Shivraj Singh
Jat, an application under Section 311 of Cr.P.C. was filed. Change of counsel
cannot be a ground to recall the witness. Furthermore, the court is also
required to consider the possible inconvenience which can be caused to the
witnesses on account of their frequent appearance before the court.
7. The Supreme Court in the case of State (NCT of Delhi) Vs. Shiv
Kumar Yadav and another reported in (2016) 2 SCC 402 has held as under :-
“26. In spite of the High Court not having found any fault in the conduct of
the proceedings, it held that “although recalling of all the prosecution
witnesses is not necessary” recall of certain witnesses was necessary for
the reasons given in Paras 15(a) to (xx) of the application of the accused. It
was observed that the accused was in custody and if he adopted delaying
tactics it is only he who would suffer.
27. It is difficult to approve the view taken by the High Court.
Undoubtedly, fair trial is the objective and it is the duty of the court to
ensure such fairness. Width of power under Section 311 CrPC is beyond
any doubt. Not a single specific reason has been assigned by the High
Court as to how in the present case recall of as many as 13 witnesses was
necessary as directed in the impugned order. No fault has been found with
the reasoning of the order of the trial court. The High Court rejected onSignature Not Verified
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merits the only two reasons pressed before it that the trial was hurried and
the counsel was not competent. In the face of rejecting these grounds,
without considering the hardship to the witnesses, undue delay in the trial,
and without any other cogent reason, allowing recall merely on the
observation that it is only the accused who will suffer by the delay as he
was in custody could, in the circumstances, be hardly accepted as valid or
serving the ends of justice. It is not only matter of delay but also of
harassment for the witnesses to be recalled which could not be justified on
the ground that the accused was in custody and that he would only suffer
by prolonging of the proceedings. Certainly recall could be permitted if
essential for the just decision but not on such consideration as has been
adopted in the present case. Mere observation that recall was necessary
“for ensuring fair trial” is not enough unless there are tangible reasons to
show how the fair trial suffered without recall. Recall is not a matter of
course and the discretion given to the court has to be exercised judiciously
to prevent failure of justice and not arbitrarily. While the party is even
permitted to correct its bona fide error and may be entitled to further
opportunity even when such opportunity may be sought without any fault
on the part of the opposite party, plea for recall for advancing justice has
to be bona fide and has to be balanced carefully with the other relevant
considerations including uncalled for hardship to the witnesses and
uncalled for delay in the trial. Having regard to these considerations, we
do not find any ground to justify the recall of witnesses already examined.
28. It will also be pertinent to mention that power of judicial
superintendence under Article 227 of the Constitution and under Section
482 CrPC has to be exercised sparingly when there is patent error or gross
injustice in the view taken by a subordinate court [Jasbir Singh v. State of
Punjab, (2006) 8 SCC 294 : (2006) 3 SCC (Cri) 470, paras 10 to 14] . A
finding to this effect has to be supported by reasons. In the present case,
the High Court has allowed the prayer of the accused, even while finding
no error in the view taken by the trial court, merely by saying that exercise
of power was required for granting fair and proper opportunity to the
accused. No reasons have been recorded in support of this observation. On
the contrary, the view taken by the trial court rejecting the stand of the
accused has been affirmed. Thus, the conclusion appears to be inconsistent
with the reasons in the impugned order.
29. We may now sum up our reasons for disapproving the view of the
High Court in the present case:
(i) The trial court and the High Court held that the accused had appointed
counsel of his choice.
He was facing trial in other cases also. The earlier counsel were given due
opportunity and had duly conducted cross-examination. They were under
no handicap;
(ii) No finding could be recorded that the counsel appointed by the
accused were incompetent particularly at the back of such counsel;
(iii) Expeditious trial in a heinous offence as is alleged in the present case
is in the interests of justice;
(iv) The trial court as well as the High Court rejected the reasons for recall
of the witnesses;
(v) The Court has to keep in mind not only the need for giving fair
opportunity to the accused but also the need for ensuring that the victim of
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the crime is not unduly harassed;
(vi) Mere fact that the accused was in custody and that he will suffer by
the delay could be no consideration for allowing recall of witnesses,
particularly at the fag end of the trial;
(vii) Mere change of counsel cannot be ground to recall the witnesses;
(viii) There is no basis for holding that any prejudice will be caused to the
accused unless the witnesses are recalled
(xi) The High Court has not rejected the reasons given by the trial Court
nor given any justification for permitting recall of the witnesses except for
making general observations that recall was necessary for ensuring fair
trial. This observation is contrary to the reasoning of the High Court in
dealing with the grounds for recall i.e. denial of fair opportunity on
account of incompetence of earlier counsel or on account of expeditious
proceedings;
(x) There is neither any patent error in the approach adopted by the trial
court rejecting the prayer for recall nor any clear injustice if such prayer is
not granted.”
8. The Supreme Court in the case of State of Haryana v. Ram Mehar
and others reported in (2016) 8 SCC 762 has held as under :-
“36. Keeping in mind the principles stated in the aforesaid authorities the
defensibility of the order passed by the High Court has to be tested. We
have already reproduced the assertions made in the petition seeking recall
of witnesses. We have, for obvious reasons, also reproduced certain
passages from the trial court judgment. The grounds urged before the trial
court fundamentally pertain to illness of the counsel who was engaged on
behalf of the defence and his inability to put questions with regard to
weapons mentioned in the FIR and the weapons that are referred to in the
evidence of the witnesses. That apart, it has been urged that certain
suggestions could not be given. The marrow of the grounds relates to the
illness of the counsel. It needs to be stated that the learned trial Judge who
had the occasion to observe the conduct of the witnesses and the
proceedings in the trial, has clearly held that recalling of the witnesses was
not necessary for just decision of the case. The High Court, as we notice,
has referred to certain authorities and distinguished the decision in Shiv
Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC
402 : (2016) 1 SCC (Cri) 510] and Fatehsinh Mohansinh Chauhan [UT of
Dadra & Nagar Haveli v. Fatehsinh Mohansinh Chauhan, (2006) 7 SCC
529 : (2006) 3 SCC (Cri) 300]. The High Court has opined that the court
has to be magnanimous in permitting mistakes to be rectified, more so,
when the prosecution was permitted to lead additional evidences by
invoking the provisions under Section 311 CrPC. The High Court has also
noticed that the accused persons are in prison and, therefore, it should be
justified to allow the recall of witnesses.
37. The heart of the matter is whether the reasons ascribed by the High
Court are germane for exercise of power under Section 311 CrPC. The
criminal trial is required to proceed in accordance with Section 309 CrPC.
This Court in Vinod Kumar v. State of Punjab [Vinod Kumar v. State ofSignature Not Verified
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Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC
(L&S) 712] , while dealing with delay in examination and cross-
examination was compelled to observe thus : (SCC pp. 226-27, para 1)
“1. If one is asked a question, what afflicts the legally requisite
criminal trial in its conceptual eventuality in this country the two
reasons that may earn the status of phenomenal signification are,
first, procrastination of trial due to non-availability of witnesses
when the trial is in progress and second, unwarranted adjournments
sought by the counsel conducting the trial and the unfathomable
reasons for acceptation of such prayers for adjournments by the trial
courts, despite a statutory command under Section 309 of the Code
of Criminal Procedure, 1973 (CrPC) and series of pronouncements
by this Court. What was a malady at one time, with the efflux of
time, has metamorphosed into malignancy. What was a mere
disturbance once has become a disorder, a diseased one, at present.”
And again : (SCC p. 246, para 57.5)
“57.5. The duty of the court is to see that not only the interest of the
accused as per law is protected but also the societal and collective
interest is safeguarded. It is distressing to note that despite series of
judgments of this Court, the habit of granting adjournment, really an
ailment, continues. How long shall we say, “Awake! Arise!”. There
is a constant discomfort.”
38. Yet again, in Gurnaib Singh v. State of Punjab [Gurnaib Singh v. State
of Punjab, (2013) 7 SCC 108 : (2013) 3 SCC (Cri) 49] , the agony was
reiterated in the following expression : (SCC p. 124, para 35)
“35. We have expressed our anguish, agony and concern about the
manner in which the trial has been conducted. We hope and trust
that the trial courts shall keep in mind the statutory provisions and
the interpretation placed by this Court and not be guided by their
own thinking or should not become mute spectators when a trial is
being conducted by allowing the control to the counsel for the
parties. They have their roles to perform. They are required to
monitor. They cannot abandon their responsibility. It should be
borne in mind that the whole dispensation of criminal justice at the
ground level rests on how a trial is conducted. It needs no special
emphasis to state that dispensation of criminal justice is not only a
concern of the Bench but has to be the concern of the Bar. The
administration of justice reflects its purity when the Bench and the
Bar perform their duties with utmost sincerity. An advocate cannot
afford to bring any kind of disrespect to fairness of trial by taking
recourse to subterfuges for procrastinating the same.”
39. There is a definite purpose in referring to the aforesaid authorities. We
are absolutely conscious about the factual matrix in the said cases. The
observations were made in the context where examination-in-chief was
deferred for quite a long time and the procrastination ruled as the
Monarch. Our reference to the said authorities should not be construed to
mean that Section 311 CrPC should not be allowed to have its full play.
But, a prominent one, the courts cannot ignore the factual score. Recalling
of witnesses as envisaged under the said statutory provision on the
grounds that accused persons are in custody, the prosecution was allowed
to recall some of its witnesses earlier, the counsel was ill and magnanimity
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commands fairness should be shown, we are inclined to think, are not
acceptable in the obtaining factual matrix. The decisions which have used
the words that the court should be magnanimous, needless to give special
emphasis, did not mean to convey individual generosity or magnanimity
which is founded on any kind of fanciful notion. It has to be applied on the
basis of judicially established and accepted principles. The approach may
be liberal but that does not necessarily mean “the liberal approach” shall
be the rule and all other parameters shall become exceptions. Recall of
some witnesses by the prosecution at one point of time, can never be
ground to entertain a petition by the defence though no acceptable ground
is made out. It is not an arithmetical distribution. This kind of reasoning
can be dangerous.
40. In the case at hand, the prosecution had examined all the witnesses.
The statements of all the accused persons, that is, 148 in number, had been
recorded under Section 313 CrPC. The defence had examined 15
witnesses. The foundation for recall, as is evincible from the applications
filed, does not even remotely make out a case that such recalling is
necessary for just decision of the case or to arrive at the truth. The singular
ground which prominently comes to surface is that the earlier counsel who
was engaged by the defence had not put some questions and failed to put
some questions and give certain suggestions. It has come on record that
number of lawyers were engaged by the defence. The accused persons had
engaged counsel of their choice. In such a situation recalling of witnesses
indubitably cannot form the foundation. If it is accepted as a ground, there
would be possibility of a retrial. There may be an occasion when such a
ground may weigh with the court, but definitely the instant case does not
arouse the judicial conscience within the established norms of Section 311
CrPC for exercise of such jurisdiction.
41. It is noticeable that the High Court has been persuaded by the
submission that recalling of witnesses and their cross-examination would
not take much time and that apart, the cross-examination could be
restricted to certain aspects. In this regard, we are obliged to observe that
the High Court has failed to appreciate that the witnesses have been sought
to be recalled for further cross-examination to elicit certain facts for
establishing certain discrepancies; and also to be given certain suggestions.
We are disposed to think that this kind of plea in a case of this nature and
at this stage could not have been allowed to be entertained.”
9. Since the applicant himself had engaged a counsel of his own choice
and this Court cannot presume any incompetency on the part of the
advocates, coupled with the fact that change of counsel cannot be a ground
to recall the witness, this Court is of the considered opinion that no illegality
was committed by the trial Court by rejecting the application filed under
Section 311 of Cr.P.C.
Signature Not Verified
Signed by: ALOK KUMAR
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10. Application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 01-05-2025
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