S.243 CrPC Does Not Bar Investigating Officer To Appear As Witness For Accused In Cross-Case Where Accused Is Complainant: MP High Court

The Madhya Pradesh High Court Gwalior Bench recently allowed an application filed by an accused under Section 311 CrPC seeking appearance of the Investigating Officer as a witness in the cross-case registered by him.

Section 311 of CrPC stipulates the power to summon material witnesses, and examine persons present. 

Justice Anand Pathak noted that Section 243 of Cr.P.C. ('evidence for defence') does not bar an IO of cross-case to appear on behalf of the accused in the case in which he is the complainant, so as to advance truth and help the cause of justice.  

"Petitioner intends to bring the witness to susbtantiate his position in the case whereby exact nature of individual role or motive or nature of allegation may get some factual benefits whereby he is facing trial as accused. In the process, justice would be the ultimate beneficiary because by this process truth may come about the exact nature of incident. It would not cause any dent to the prosecution because that aspect must have been clarified by the accused while appearing in the witness box as defence witness," the Court observed. 

The petitioner and his family members was accused of abusing and beating the complainant with sharp weapons when the latter along with three others went to a river to take a bath. 

The petitioner was thus alleged to have committed offences under Sections 147, 148, 149, 307, 323, 294 of the IPC and Sections 3(2) (v-a), 3(1)(R) of the SC/ST (Prevention of Atrocities) Act. Another FIR was also registered on behalf of the petitioner against the complainant a for offence under Sections 294, 323, 324, 506 of 34 of the IPC. 

Advocate Sidharth Sijoriya submitted on behalf of the petitioner that an application under Section 311 Cr.P.C. had been filed by the petitioner in the cross-case filed by him for calling the Inspector, and two Sub-Inspectors as witnesses. The counsel submitted that the trial court allowed the application by the Special Public Prosecutor for calling the witnesses, while that of the petitioner was rejected. The present plea was thus moved by the petitioner against the trial court's dismissal of his application. 

Public Prosecutor Rajeev Upadhyay opposed the plea, arguing that since the petitioner had appeared before the trial Court as a defence witness and given his evidence, calling the Investigating Officer thereafter would be a futile exercise. 

The Court at the outset ascertained that the matter was at the stage of evidence for defence, and that Section 243 Cr.P.C. provides such a mechanism. 

"Scheme of Section 243 of Cr.P.C. indicates that defence/accused can produce his evidence and it nowhere bars the Investigating Officer of cross-case to appear on behalf of accused in the case in which he is complainant so that truth can come to the fore as it would help the cause of justice to the extent where his act vicarious or individual or the extent of role would be determined," it observed. 

Relying on the decisions in T.Nagappa v. Y.R. Muralidhar (2008), and Kamlakar Atmaram Kadu and Ors. v. State of Maharashtra (2000), the Court ascertained that if an accused person intended to bring a witness in his defence and did not intend to protract the trial, nor was his prayer vexatious, his prayer ought to be allowed in the interests of justice. 

The Court found that since the petitioner was the accused and witness had already been recalled while allowing the application under Section 311 Cr.P.C., no prejudice would be caused in allowing his application. 

"Therefore, in the considered opinion of this court, in order to prevent the miscarriage of justice and in view of the ultimate goal of justice, impugned order passed by the trial court is hereby quashed. Petition preferred by the petitioner stands allowed," it held, while directing the trial court to call the relevant witnesses sought by the petitioner in his application. 

Citation: 2024 LiveLaw (MP) 9

Case Title: Veer Singh v. State of Madhya Pradesh 

Case Number: MISC. CRIMINAL CASE No. 54730 of 2023

Click Here To Read/Download The Order