HIéH COURT OF JUDICATURE CHHATTI$GARH AT BILA5?UR Criminal Revision No.511 of 2002 APPLICANT: Dwarka Pmsad Rawa‘i‘, Sl'o Thakurdas Rawat, Sub Engineer (under susgnsion), Public Works Depar‘l’meni‘, Wad‘r'ufnagcra Disf‘r. Sarguja, Currem‘ly residing 61' Jail Road, Tikamgarh (ii/LP.) Versus NON-APPLICA N'F: a Sfa‘ie of Chhai'fisgarh POST FOR ORDER ON w“ February, 2003. Sdl- L.C.BHADOO Judge February, 2003 p HIGH COURT OF JUDICATURE CHHATTIS§AQH AT BTLASPHD Criminal Revision No.511 of 2002 Before: Hon'ble Shri LC. Bhadoo, J. O§DER The accused / applican‘l' being aggrieved of fhe order- dnfed 25m Juiy, 2002' passed in Special Sessions Triai Ned/98, by fhe 5pecial Judge Ambikapun has preferred 'rhis criminal revision. 2. The reievani fads for fhe disposal of fhis criminai revision are fhai‘ The accused / applicani’ is facing a criminal friai punishable for The offence under Secfion '13 (1) (e) read wifh Sec‘l‘ion 13(2) of fhe Preveni‘ion of Corruption Act for having acquired proper’ry wor‘l‘h Rs.11,83,968/— disproporfionafe to his known sources of income. So far, The prosecufion has examined in all 22wi1‘nesses. An application on behalf of fhe accused / applicani' was filed by his Advaca‘l’e Ved Prakash Agrawal +0 fhe effecf fha‘r fhe wifnesses PW-5 - Rajesh Sahi, PW-é — RK. Lohar, PW-11 - AK. Singh, : ’3) APPLICANT: Dwarka Prasad Rawaf, S/o Thakur'das Rawat Sub Engineer (under suspensien), Public Works Depar‘rment Wadra‘fnagar', Disff. Sarguja, Curremly rasiding crr Jail Road, u f Tikamgar‘h (MR) Versus NON-APPLICANT: § Sfafe of Chhaffisgar’h Presenf:— Shri Rakesh Anfhony, Advocafe For +he applicon+ Miss Sharmila Singhai, Depufy 6A. For The Sfafe / non-applican‘r PW—lé - R.P. Sharma, PW—18 - Rasid Shibli, PW—ZO - Ravindra Mis'm'a and PW-22 - M.L. Meena have been examined by The prosecu‘rion, however, the previous Advocates namely, Mr‘ingendra Singh and RC. Shukh could no? cross examine these witnesses properly. These witnesses are materia! witnesses and they have deposed regarding the seizure from the house of the applicant, preparation of the inventory, voluation of the property seized from the house of the applicant, even though these witnesses have not been cross’exarnined by the previous counsel about the valuation because the property has been over valued by inflating the cost. The defence of the accused / applicant is that the property has not been acquired by him during the assessment period through corrupt‘practices, the property has been wrongly shown to be acquired by him through corrupt practices and it does not belong to him and regarding valuation of the property, these witnesses have not been examined properly. Therefore, in the interest of justice, these witnesses be recalled for cross examination under Section 311 of the Cr.P.C. in order to set up the proper defence, otherwise, the applicant will suffer a great injustice. 3. I have heard the learned counsel for the parties and perused the record. 4. The learned counsel for the accused / applicant argued that these witnesses have not beenvcross examined an material points and in the absence of that, the accused l applicant will suffer a great loss as his defence has not been put forward correctly. In order to do justice and for just decision of the case and in the interest of the justice, it is necessary that these witnesses be recalled for further cross examination. 5. On the other hand, the learned Deputy Govt. Advocate argued that the accused / applicant has got fair opportunity and the witnessW < . < \ W‘sn ’ I’ lJw ’/ § \ been cross examined, *herefore, fher'e is no jusfificm'ion in recalling These wifnesses . 6. I have [perused The impugned order in which The learned Specid Judge has observed fhaf 1hese wifnesses have been cross examined by 5hri RC. Shukla and Shr-i Mrigendr’a Singh, Advocates, in detail and only because The accused / applicanT has changed The counseli The wiTnesses canhoT be called again and again and he dismissed The app-licaTion. The cenTmed copies of The sTaTemenT of These wiTnesses are available on The record of This file and I had The occasion To peruse Them and offer perusing ‘ i The same, I am of The opinion ThaT The poinT raised by The learned counsel for The accused / applicanT is fair and reasonable To a greaT exTenT and These wiTnesses have noT been cross examined properly. Now, coming To The quesTion as To wheTher These wiTnesses should be recalled or noT, The discreTionary power is given To The CourT To examine any wiTness who is presenT in The CourT or To'summon any wiTnes-s or recall and re—examine any person already examined. This power has been given To The CourT wiTh a view To arrive aT The Trui'h and for jusT decision of The case. The objecT of This Sec’rion is To arrive aT The TruTh irrespecTive of The facT ThaT The prosecuTion or defence has failed To produce some evidence which is necessary for a jusT and fair decision of The case. A paramounT consideraTion in incorporaTing This provision is for doing The jusTice To The case. The CourT can examine The wiTness aT any sTage whenever iT considers The evidence essenTial and a wide discreTionary power has been given To The CourT To Take decision afTer going Through The facTs and circumstances of The case. T. If we look inTo The facTs of The presenT case, iT is True ThaT /\_ l The accused / applicahT is facing very serious charges regarding The/ We mi wa—m ,r / , I acquisifion cf properfy disproporfianafe fo his known sources of income. If is a very fechnica! case, unless fhe concerned wifness§ and some of Them regarding fhe voluafion of properfy) are no? cross examined on fhe mafer'ial v poinfs, Then, There are chances of injusfice f0 fhe accused / applicant For example, PW—é has made ossessmenf for valuafion of fhe house, no quasi-ion has been asked regarding ihe exper‘i'ise and specializa‘Hon in fhe field and fur‘i‘her, no ques‘i'ion has been asked abou‘i' ‘lhe qualify of‘ The consi'ruciion. 3iriilarly, PW—S - P.K. Naik, regarding i‘he seizure of The ornamenfs, has no‘i‘ been cross examined on fhe poin‘l' of valuai'ion of These articles. PW-13 is a ‘ v §a§g§g § l gold smii‘h who‘gmacle The valuafion of the ornamen‘l's has no? been cross examined regarding fhe valuation of fhe ornamenfs. PW—16 - RP. Sharma who raided fhe house and prepared fhe invenfory, in which The valuafion of fhe properfy was made, has nof been properly cross examined, which is in all probabilify going To cause prejudice To The accused / applicant If is True ThaT The opporfuniTy To cross examine These wiTnesses was given To The learned counsel for The accused l applicanT and he cross examined Them, buT unforTunaTely, These wiTnesses were noT cross examined in a righT manner and The accused / applicanT is facing very serious charges. The CourT has To be consideraTe so ThaT no injusTice should be caused To The accused / applicanT on accounT of lapse by The counsel. While rejecTing The applicaTion, The learned Trial CourT has given one reason ThaT The counsel for The accused / applicanT has goT The opporTuniTy and has cross examined aT lengTh, Therefore The wiTnesses cannoT be called again and again. In View of whaT has been menTioned above, The observaTion of The CourT ThaT The wiTnesses have been cross examined aT lengTh is noT correcT. 8. In The given siTuaTion, I am of The opinion ThaT in order To / mi reach aT a righT conclusion and in order To ascerTain The TruTh and veraciTy/l / ,. a w$ ; {a C5 of fhe sfafemenfs of 1‘hese wifnesses as we“ as in order +0 decide fhe poinfs raised by The accused l' applicant if is necessary Thai an appor‘iuni’ry mus? be given ‘io The Advoca‘ie for fhe accused / appiican‘i 'io cross examine These witnesses on ‘ihose poin'i's. Therefore I am of fhe opinion Thai fhis is a fi‘i‘ case in which The power under Sec'iion 311 of fhe Cr.P.C. should be exercised in order To do 'ihe jus‘i‘ice in ’rhe mafier. However, since i'he oppor'iunify was given 1'0 the counsel for fhe accused / applicant he could-no? u'l‘ilize i'l' prophrli/ and The wifnesses are i'o be recalled, fherefore, The S‘l'ai'e should nof suffer any loss on account of fhe lapse caused by fhe counsel for fhe accuse; / applicanl’, i‘r would be appropriafe if fhe Travelling Allowance, Dearness Allowance and also The salary for Those days on which These wiT‘nesses come for The evidence should be paid by The accused / applicanT. In view of whaT have been discussed above and in View of The requesT of The counsel for The accused / applicanT made before This CourT, iT is ordered ThaT The wiTnesses namely,. PW-6 - R‘K. LoharfPW-ll — AK. Singh4 PW-16 - RP. Sharma, PW-18 - hasid Shibli, PW-ZO — Ravindra Mishra and PW—22 - ML. Meena be recalled for furTher cross examinaTion by The learned counsel for The accused I applicant IT is furTher direcTed ThaT These wiTnesses shall be recalled only on deposiTing The money by-The accused / applicanT before The Trial CourT To meeT The expenses of for The Travelling Allowance, Dearness Allowance and salary of Those days on which These wiTnesses will remain presenT in The CourT. Therefore, The order of The Trial CourT daTed c" 26m July, 2002, being noT in conformiTy wiTh The provisions conTained in SecTion 311 of The Cr.P.C., The same is seT aside and iT is direcTed ThaT on deposiTing The money as‘i‘ndicaTed above by The accused / applicanT These six wiTnesses be recalled for furTher cross examinaTion by The counsel for The accused / applicanT. If The money is noT deposiTed by The accused //// M. /// / $¢$ \ applican? wifhin seven days from The dafe of fhe arder of The frial Court fhen These wifnes$es should no? be recalied. 9. Consequenfly, M.{Cr.)PNo.4157/2002 sfands disposed of. 74: Sdl- L.C.BHADOO Judge g2 g February, 2003