STATE OF M.P. versus BADRI Y ADAV AND ANR.

Citation: [2006] 3 S.C.R. 623 · Decided: 31-03-2006 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

STATEOFM.P. 
A 
11. 
BADRI Y ADAV AND ANR. 
MARCH 31, 2006 
[H.K. SEMA AND DR. AR. LAKSHMANAN, JJ.) 
B 
Code of Criminal Procedure, 1973: 
s.233-Examination of witness for defence-Prosecution witnesses- C 
Supporting prosecution case in their statements u/s 164 as also before trial 
court deposing as eye-witnesses-Later filing affidavit before trial court 
resiting from their earlier statements and deposing as defence witnesses-
Held, this was clearly for the purpose of defeating the ends of justice which 
is not permissible under the /aw-Provisions of sub-s.(3) of s.233 cannot be 
understood as compelling attendance of any prosecution witness examined, D 
cross-examined and discharged to be juxtaposed as DWs-High Court was 
not justified in reversing conviction recorded by trial court-Penal Code, 
1860-s.302134. 
Penal Code, 1860: 
s.193--Perjury-Prosecution witnesses-Resiting from their earlier 
statements made u/s 164 Cr.P.C. and statements as eye-witnesses made on 
oath before Court of Session-Later filing affidavit before trial court appearing 
as defence witnesses and resiling from their earlier statements and denying 
E 
to have seen the incident at all-Held, their subsequent statements made as F 
DWs, prima facie, appear to be false-Trial court is directed to file a complaint 
uls 193 and initiate proceeding against the PWs juxtaposed as DWs-Code 
of Criminal Procedure, 1973-s.233(3). 
Appellant alongwith others was prosecuted under s.302/34 IPC. 
Prosecution witnesses, PW 8 and PW 9 supported the prosecution case as eye- G 
witnesses in their statements recorded u/s 164 Cr.P.C. before the Magistrate on 
21.9.1989 and during the trial before the Court of Session on 18.12.1990. Later, 
these two witnesses filed affidavits on 16.8.1994 before the trial court stating 
that their earlier statements made before the Magistrate and the trial court were 
623 
H 
624 
SUPREME COURT REPORTS 
[2006 I 3 S.C.R. 
A tutored by the police and were made due to threat and coercion. They denied to 
have seen any incident at all. The trial court allowed them to be examined as 
defence witnesses. They deposed as DW-1 and DW-2 and resiled from their 
earlier statements. The trial court observed that in between 18.12.1990, the day 
on which their statements were recorded as PWs and 17.7.1995, when their 
B 
statements were recorded as defence witnesses, no complaint whatsoever was 
made by them that they gave the earlier statements due to coercion, threat or 
being tutored by the police; and disbelieved their subsequent statements made as 
defence witnesses. The trial court after considering the evidence of prosecution 
witnesses including the evidence of the two eye witnesses as PW-8 and PW-9, 
convicted the accused under s.302 read with s.34 IPC. On appeal, the High Court 
C acquitted the accused observing that delay in conducting the trial resulted in 
strange situation where the two witnesses stated ~omething as prosecution 
witnesses and after lapse of sufficienc time gave evidence as defence witnesses. 
Aggrieved, the State filed the appeal. 
D 
E 
F 
Allowing the appeal, the Com1 
HELD: I.I. The power to summon any person as a witness or recall and 
re-examine any person already examined is the discretionary power of the Court 
in case such evidence appears to it to be essential for a just decision of the case. 
Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply 
for the issue of any process for compelling the attendance of any witness in his 
defence. The provisions of sub-section (3) of Section 233 cannot be understood 
as compelling the attendance of any prosecution witness examined, cross-
examined and discharged to be juxtaposed as DWs. In the present case PW-8 
and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what 
was contemplated by sub-section (3) ofSection 233 Cr.P.C.1629-C, DI 
1.2. When such frivolous and vexatious petitions are filed, a Judge is not 
powerless. He should use his discretionary power and refuse relief on the ground 
that it is made for the purpose of vexation or delay or for defeating the ends of 
justice. In the instant case, the witnesses were examined by the prosecution as 
eyewitnesses on 18.12.1990, cross-examined and discharged. Thereafter, an 
G application under Section 311 Cr.P.C. for recalling and re-examining persons 
already examined was rejected. The two witnesses were recalled purportedly in 
exercise of power under sub-section (3) of Se

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