ATIQ Vs. STATE OF MP

JUDGEMENT

(1.) THIS application under section 482 CrPC is directed against the order passed by Special Judge, Ujjain in Criminal Case No.81/2012 dated 6.7.2015 by which, the learned Special Judge allowed the application under section 311 CrPC for calling three witnesses R.K. Soni, Ashish and Radheshyam who were not examined by the prosecution, and therefore, statement was very important and similarly, the learned Special Judge also allowed application in respect of recalling of prosecution witnesses - Rahul and Mukesh who were earlier cross -examined and released.

(2.) AS per the relevant facts in this case, the present applicant Atiq remained absconding and was arrested subsequently. After his arrest, he was subjected to Test Identification Parade and also on his information under section 27 of Evidence Act, a purse allegedly belonging to the deceased was recovered. The recovery memo was prepared by the prosecution witnesse -R.K. Soni and Ashish and Radheshyam were attesting witnesses, of the recovered memo. Other two witnesses, who were ordered to be recalled by the impugned order were witnesses of memo of Test Identification Parade in respect of the present applicant. The present application is filed on the ground that it was known to the prosecution from very beginning that such witnesses were to be examined. The prosecution deliberately left these witnesses, and now, merely to delay the trial, the application is filed. The applicant is in jail since 26.8.2012 and further delay would cause him immense prejudice.

(3.) SECTION 311 CrPC is two limes. First part is directory and the second part is mandatory. The second part provides as under : - ''and the Court shall summon and examine or recall and re -examine any such person if his evidence appears to it to be essential to the just and proper decision of the case. ''