Danish Choudhary vs State of Madhya Pradesh

N.K. Gupta, J.—The applicant has moved an application of revision against the orders dated 12.8.2011 and 9.9.2011 whereby the applications of the applicant and complainant Babar u/s 311 of the Cr.P.C. for re-examination of the complainant were dismissed and application u/s 320(1) of the Cr.P.C. was also dismissed. The facts of the case in short are that on 24.10.2009 the complainant Babar informed the Police at the hospital that the accused Danish Choudhary assaulted him by a sword. The Investigation Officer registered a criminal case for offence punishable u/s 307 of I.P.C. and a charge sheet was submitted. Case was duly committed to the Sessions Court and ultimately transferred to the trial Court. On 22.11.2010 Mohd. Babar was examined who gave the statement against the applicant by name. The applicant moved an application u/s 311 of the Cr.P.C. for re-examination of the complainant to show that the applicant was not the same Danish Choudhary who was examined. Such application was dismissed for the first time on 4.2.2011 and Criminal Revision No. 760/2011 was also filed and withdrawn by the applicant. Again on 9.9.2011 the complainant appeared before the trial Court and applied for permission of compromise but since the offence was not compoundable, permission was not granted. In the meantime, the applicant moved an application u/s 311 of Cr.P.C. which was dismissed vide order dated 12.8.2011.

I have heard the learned counsel for the parties.

The learned counsel for the applicant has raised mainly two points that the applicant was not present in the Court when the complainant was examined and therefore, there is a flaw in his identification. He has placed his reliance upon the judgments of the Division Bench of this Court in the case of State of Madhya Pradesh Vs. Budhram Kunkuram Satnami, He has submitted that in absence of the accused an appropriate identification could not be done with the complainant and therefore, he could be recalled. The reliance is placed upon the judgment passed by the single Bench of this Court in the case of Gurmeet Kaur Vs. State of Madhya Pradesh, and the judgment passed by Hon''ble the Apex Court in the case of Mohanlal Shamji Soni Vs. Union of India and another, Similarly reliance is placed on the order passed by the single Bench of the Kerala High Court in the case of Valsamma Vs. Satheesh Kumar, in which a detailed note is given on the basis of the judgment passed by Hon''ble the Apex Court in the case of Rajendra Prasad Vs. The Narcotic Cell Through its Officer in Charge, Delhi, and therefore, it is prayed that by previous revision there is no effect to the present revision because the present application was moved on a different set of facts. It is prayed that the complainant be permitted to be re-examined.

The learned Panel Lawyer has opposed the application. He submits that once the application u/s 311 of Cr.P.C. was dismissed and its revision was also withdrawn after part arguments then second application or the second revision may not be allowed though set of facts made differently.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case if the entire application and the reason for the application is considered then it would be apparent that the complainant was present in the Court at the time of consideration of the application of compromise but, in his presence the applicant did not apply before the trial Court to get him re-examined. There was a named FIR and the applicant was arrested thereafter. The complainant gave the name of the applicant in his statement. In the compromise it is mentioned that the applicant was not the same Danish Choudhary who assaulted the victim and therefore, he wanted to do the compromise. The applicant had also challenged the order dated 9.9.2011 by which an application for seeking permission to do compromise was rejected.

The learned counsel for the applicant did not argue anything about the order dated 9.9.2011. On the contrary, he tried to show that the order was on the application of the complainant u/s 311 of Cr.P.C. The order dated 9.9.2011 was passed by the trial Court by which the compromise application was rejected. It is obvious that offence punishable u/s 307 of I.P.C. was not compoundable. Hon''ble the Apex Court have directed to dismiss the trial in matrimonial cases if any compromise took place between the parties so that both the party may live with peace in future. However, no such direction is given for any other offence. The trial Court did not commit any mistake in rejecting the application for compromise for the offence punishable u/s 307 of I.P.C. and therefore, the order dated 9.9.2011 appears to be correct and no interference can be done in the present revision.

So far as the order dated 12.8.2011 is concerned, it is apparent that now a days the accused persons are given a latitude not to appear in person. Various applications u/s 317 of the Cr.P.C. are filed and looking to the pressure over the Magistrate or the Sessions Court the Judge is bound to record the evidence in absence of the sole accused or one or two accused out of so many. Under such circumstances, the accused who enjoyed the right u/s 317 of the Cr.P.C. should not have claimed that the witness was not examined in his presence. In the present case, it is apparent that a named FIR was lodged by the complainant. He gave his statement by name and there is no lacuna in his statement about identification about the applicant.

Moreover, if the complainant is of the view that he participated in the compromise application with the applicant then certainly the complainant does not want that the applicant be convicted and therefore, the application moved u/s 311 of the Cr.P.C. is not in the interest of the prosecution but, it is moved in the interest of the applicant so that after the compromise the complainant may enter into the witness box to turn hostile. Such type of activity cannot be permitted. If all the judgments referred by the learned counsel for the applicant are referred then the application u/s 311 of the Cr.P.C. is allowed in the interest of the justice whereas, the applicant has moved such an application to defeat the interest of the justice and therefore, by mere fact that the applicant was not present in the Court when the complainant was examined, no right is accrued to the applicant to get the complainant re-examined.

On the basis of the aforesaid discussion, it would be apparent that the applicant cannot take double advantage. Now a days where the accused persons are not appearing in the Court and the various Courts are bound to examine the witnesses in absence of the accused persons then if the accused obtains such an advantage then he cannot raise the objection that the witness was examined in his absence. If he would have taken the risk that a witness should be examined in his absence certainly he has to face the consequences of the risk. Consequently, there is no interest of justice to re-examine the complainant if the application u/s 311 of the Cr.P.C. is allowed then in the light of the compromise the complainant would turn hostile and therefore, there is no any interest of justice in re-examining the complainant. When a compromise took place between the parties in a non-compoundable offence then certainly the accused would get the advantage of the compromise at the time of passing of the sentence and certainly the applicant would be entitled to get such an advantage.

On the basis of the aforesaid discussion, no interference can be done in the present revision in either the order dated 9.9.2011 or 12.8.2011. The application u/s 311 of the Cr.P.C. is moved only to defeat the interest of the justice which was rightly dismissed by the trial Court. Consequently, the revision filed by the applicant is hereby dismissed. Copy of the order be sent to the trial Court for information and compliance. Interim order dated 20.10.2011 is hereby vacated and the trial Court is directed to pass the final order in the case.