1 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE [CASE NUMBER] ([ENTITY] vs. State of MP) Indore, dated : 11.02.2019 Shri [ENTITY], learned counsel for the applicant. Shri [ENTITY], learned Public Prosecutor for the non- applicant - State. Heard. This order disposes the application filed under Section 482 of [ACT], which has been preferred against the order dated 17.12.2018
passed by the First Additional Sessions Judge, Sendhwa, District Barwani pronounced in [CASE NUMBER] rejecting the application filed under [SECTION] of [ACT]
In this case, as many as five accused persons are facing trial under [SECTION] of the IPC on the basis of report of complainant [ENTITY] and they have been charged for committing the murder of son of the complainant. While [CASE NUMBER] was at the stage of prosecution evidence, an application under [SECTION] of [ACT] was filed on behalf of the complainant [ENTITY] to examine a witness namely, [ENTITY] claiming him to be an eye-witness and seeking to examine him on behalf of the prosecution. This application was considered and rejected vide impugned order dated 17.12.2018. It it against this order that inherent powers of this Court has been invoked seeking permission to examine [ENTITY] as a prosecution witness.
Learned counsel for the applicant has submitted that Dagdu THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE ([ENTITY] vs. State of MP) @ Dagdiya had been threatened by the accused persons hence, he could not present himself as witness. The Trial Court in its impugned order did not consider it as an appropriate ground as there was no material available on record to conclude that [ENTITY] was being threatened. Learned counsel for the applicant while making submissions before this Court has referred to two citations of the Apex Court, which are, [PRECEDENT] vs. Central Bureau of Investigation (State) reported in 2013 (4) SCC (Cri.) 828 and [ENTITY] vs. State of Uttar Pradesh & another reported in 2011 (3) SCC (Cri.) 371. Both these citations underline the scope and ambit of [SECTION] of [ACT] and favour exercise of powers under this provision for substantial justice. However, on perusal of facts of these cases show that while in the case of [PRECEDENT] (supra), the appellant (accused) therein was denied the opportunity of examining three defense witnesses. In the case of [ENTITY] (supra), a lady namely, [ENTITY] had filed a suit against [ENTITY] seeking mandatory injunction against encroachment of her land. Temporary injunction was granted in her favour and [ENTITY] instituted a miscellaneous appeal. Thereafter, officers of [ENTITY] made an offer to [ENTITY] that her dispute shall be settled pursuant to payment of bribe by [ENTITY]. However, [ENTITY] resided in U.S.A. and her father namely, [ENTITY] was looking after her case. The offer was THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE ([ENTITY] vs. State of MP) made to [ENTITY] through her father [ENTITY]. [ENTITY] then informed Superintendent of Police (Vigilance) and trap was laid and officers of [ENTITY] were caught red handed. In this case, the accused sought to examine [ENTITY]. The Apex Court, even though agreeing that powers under [SECTION] of [ACT] are vast, still held that the order of the Court below to allow application under [SECTION] of [ACT] was not appropriate and that [ENTITY] did not need to be examined as a court witness. Thus, in the second citation, application filed under [SECTION] of [ACT] was considered to be wrongly allowed by the Court below, as per the observations of the Apex Court.
In the case in hand, the witness, who is not named by the prosecution and whose statement under [SECTION] of [ACT] also has not been recorded, could not be allowed as a prosecution witness. The proper course for the complainant would have been to approach the Investigating Officer who would have made further investigation under [SECTION] of [ACT] and if considered necessary, he would have taken the statement under [SECTION] of [ACT] of [ENTITY] and then file a supplementary charge-sheet with a copy to the accused and it is only then that a witness could have been so examined. It appears that no such procedure was adopted. Once the charge-sheet has been filed by the prosecution, then the provisions of [SECTION] THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE ([ENTITY] vs. State of MP) of [ACT] can be invoked in respect of listed witnesses and regarding witnesses other than the listed witnesses, the proper course for the complainant should have been to request in writing to the Investigating Officer to make additional investigation under [SECTION] of [ACT] This course has not been adopted. There is no reason for this Court to interfere with the impugned order. Thus, this petition stands dismissed.
Certified copy, as per rules.
([ENTITY]) Judge gp