ARUN Vs. STATE OF M P

JUDGEMENT

(1.) WITH the consent of the parties the matter is heard finally. This is a petition filed under section 482 of Criminal Procedure Code, for quashment of the order dated 1.9.2006 passed by Additional Sessions Judge, Khachord in ST No. 288/2003, whereby an application filed by prosecution under section 311 of the Criminal Procedure Code was allowed and recalling of prosecution witness was permitted. This order of recalling of prosecution witness is impugned in this petition.

(2.) IT appears that one Hitesh was examined as PW 7 during trial of case bearing ST No. 288/2003. At that time he was declared hostile as he had not supported the case of prosecution and was confronted with his earlier statement recorded under section 161 of Criminal Procedure Code by the prosecutor. Later on while the same witness was in jail then he sent an application on 5.8.2006, wherein it has been stated that earlier he gave the statement because the accused persons of the case were also with him in the same jail and were continuously threatening him and were saying that if he gives his statement against them then his all family members would be killed, in this situation earlier he had not supported the case of the prosecution. It has also been stated in that application that now he again wants to give statement in the case so that real facts can come before the Court. With this prayer that application was forwarded by the Jailer to the concerning Court, then application under section 311 of the Criminal Procedure Code was also moved by the prosecutor, which was allowed.

(3.) PER contra, learned public prosecutor and learned counsel who appeared for other respondents submitted that earlier witness was under pressure of the accused persons and could not disclose true facts. Now his conscious is back to tell truth before the Court, that is why he has sent such application from the jail itself. If has further argued that the powers under section 311 of Criminal Procedure Code are discretionary powers of the Court and under such powers the Court can order looking to the facts of the case to recall any witness who was earlier examined by the trial Court. It has also been argued that trial Court has correctly relied on the judgment of Supreme Court in the case of Jaheera Habibulla Sheikh and others v. State of Gujarat and others [(2004) 4 SCC 158] and, therefore, there is no scope of interference in the order passed by trial Court.