1

THE HIGH COURT OF MADHYA PRADESH

CRR No. 2536/2021
(LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

Gwalior, Dated : 29-04-2022

Shri S.K. Mishra, Counsel for applicant.

Shri Sankalp Sharma, Counsel for respondent/Lokayukt.

This Criminal Revision under Section 397, 401 of Cr.P.C has

been filed against the order dated 24.09.2021 passed by Special Judge,

Prevention of Corruption Act Vidisha, in SC Lok 06/2017 by which

the application filed by the applicant for summoning the defence

witnesses No.1 to 4 & 6 has been rejected on the ground that they are

the Government officials and in case if they are summoned then it will

hamper the Government work and the prayer for summoning

proprietor of Amit Hardware has been rejected on the ground that he

has already been examined as prosecution witness.

It is submitted by Counsel for applicant that applicant is facing

trial under the Prevention of Corruption Act and the case was fixed for

recording of defence evidence and he filed a list of witnesses along-

with the details of records which were sought to be proved by

examining those witnesses. However, the Trial Court has rejected the

application only on the ground that the witnesses mentioned at serial

No.1 i.e. Secretary, Gram Panchayat Ukayla, Serial No.2-Public

Information Officer, Janpad Panchayat Ganjbasoda, District Vidisha,

Serial No.3-CEO, Janpad Panchayat Ganjbasoda, District Vidisha,

Serial No.4-SHO, Police Station City Kotwali, Ganjbasoda, District

 2
THE HIGH COURT OF MADHYA PRADESH
CRR No. 2536/2021
(LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

Vidisha, and Serial No.6- the present Secretary of Gram Panchayat

Visdha, are the Government officials and in case if they are summoned

then it will hamper their official duties and the witness mentioned at

serial No.5 has already been examined as prosecution witness.

Heard learned Counsel for the parties.

The reason for declining the prayer to examine witnesses

mentioned at Serial No.1 to 4 & 6 cannot be a ground to deprive the

applicant from examining the witnesses in his defence.

Section 233 of Cr.P.C read as under :-

“233. Entering upon defence.-(1) Where the accused is not

acquitted under section 232 he shall be called upon to
enter on his defence and adduce any evidence he may have
in support thereof.
(2) If the accused puts in any written statement, the Judge
shall file it with the record.
(3) If the accused applies for the issue of any process for
compelling the attendance of any witness or the
production of any document or thing, the Judge shall issue
such process unless he considers, for reasons to be
recorded, that such application should be refused on the
ground that it is made for the purpose of vexation or delay
or for defeating the ends of justice.”

From the plain reading of Section 233 (3) of Cr.P.C, it is clear

that application can be refused on the ground that it has been made for

purpose of vexation or delay or for defeating the ends of justice. The

prayer for summoning five witnesses mentioned as serial Nos. 1 to 4

& 6 has been rejected merely by mentioning that in case if they are

asked to appear before the Trial Court as a defence witness, then it

 3
THE HIGH COURT OF MADHYA PRADESH
CRR No. 2536/2021
(LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

would hamper their Government job.

However, it is fairly conceded by Shri Sankalp Sharma that the

prosecution also must have examined certain Government officials.

The reasoning which has been assigned by the Trial Court is

completely stranger to the provisions of Section 233 of Cr.P.C.

Therefore, the reasons assigned for rejecting the prayer for

examination of witnesses mentioned at serial No.1 to 4 & 6 cannot be

approved.

So far as the rejection of the prayer for summoning the

proprietor of Amit Hardware is concerned, it is submitted that the

prayer has been rejected only on the ground that proprietor of Amit

Hardware has already been examined as a prosecution witness and full

opportunity was granted to the applicant to cross examine him.

The Supreme Court in the case of State of M.P. Vs. Badri

Yadav and Another, reported in (2006) 9 SCC 549 has held as

under :-

“15. When such frivolous and vexatious petitions are

filed, a judge is not powerless. He should have used his
discretionary power and should have refused relief on the
ground that it is made for the purpose of vexation or
delay or for defeating the ends of justice. In the present
case, the witnesses were examined by the prosecution as
eyewitnesses on 18-12-1990, cross-examined and
discharged. Thereafter, an application under Section 311
CrPC was rejected. They were recalled purportedly in
exercise of power under sub-section (3) of Section 233
CrPC and examined as DW 1 and DW 2 on behalf of the
accused on 17-7-1995. This was clearly for the purpose
 4
THE HIGH COURT OF MADHYA PRADESH
CRR No. 2536/2021
(LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

of defeating the ends of justice, which is not permissible

under the law.
16. In Yakub Ismailbhai Patel v. State of Gujarat [(2004)
12 SCC 229 : 2004 SCC (Cri) Supp 196] in which one of
us Dr.AR.Lakshmanan, J. was the author of the judgment,
in somewhat similar case to the facts of the present case,
it was held that once a witness is examined as a
prosecution witness, he cannot be allowed to perjure
himself by resiling from the testimony given in court on
oath by filing affidavit stating that whatever he had
deposed before court as PW was not true and was done
so at the instance of the police. In that case the evidence
of PW 1 was relied upon by the trial court and also by the
High Court. He was examined by the prosecution as an
eyewitness. He also identified the appellants and the co-
accused in the court. After a long lapse of time he filed
an affidavit stating that whatever he had stated before the
court was not true and had done so at the instance of the
police. In those facts and circumstances this Court in
paras 38 and 39 at SCC pp. 240-41 held as under:
“38. Significantly this witness, later on filed an
affidavit, wherein he had sworn to the fact that
whatever he had deposed before court as PW 1 was
not true and it was so done at the instance of the
police.
39. The averments in the affidavit are rightly rejected
by the High Court and also the Sessions Court. Once
the witness is examined as a prosecution witness, he
cannot be allowed to perjure himself by resiling from
the testimony given in court on oath. It is pertinent to
note that during the intervening period between giving
of evidence as PW 1 and filing of affidavit in court
later, he was in jail in a narcotic case and that the
accused persons were also fellow inmates there.”

The proprietor of Amit Hardware has already been examined as

prosecution witness, therefore, no case is made out for summoning

him as a defence witness. Accordingly, prayer for summoning the

proprietor of Amit Hardware has rightly been rejected by the Trial

Court.
 5
THE HIGH COURT OF MADHYA PRADESH
CRR No. 2536/2021
(LAXMI NARAYAN VISHWAKARMA Vs STATE OF M.P.)

Under these circumstances, this Court is of the considered

opinion that the order dated 24.09.2021 passed by Special Judge,

Prevention of Corruption Act Vidisha, in SC Lok 06/2017 cannot be

given the stamp of judicial approval in toto.

Accordingly, order dated dated 24.09.2021 passed by Special

Judge, Prevention of Corruption Act Vidisha, in SC Lok 06/2017 is

hereby partly set-aside. The matter is remanded back to the Trial Court

to decide the prayer made by applicant for examining the witnesses

mentioned at serial No 1 to 4 & 6 in accordance with the provisions of

Section 233 of Cr.P.C.

Accordingly, the Criminal Revision is disposed of.

(G.S. Ahluwalia)
Judge

Aman
AMAN TIWARI
2022.05.02 10:31:55 +05'30'