HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.514 OF 2019
ORDER:
This Criminal Petition is filed by the petitioner under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'Code'') to quash the order dated 10.12.2018 passed by the learned XVII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad in Crl.M.P. No.3028 of 2018 in C.C. No.1062 of 2016.
2. The petitioner herein is de facto complainant in C.C.No.1062 of 2016 while respondent No.2 herein is accused and they are wife and husband.
3. Heard Mrs.S.A.V. Ratnam, learned counsel for the petitioner. Though Mr. D. Ram Reddy entered his appearance on behalf of respondent No.2 did not represent the case when it was listed for arguments.
4. CASE OF PROSECUTION:
i) While the petitioner herein was working as a Cashier in e-Seva Centre at Sultan Bazar Branch, Hyderabad, respondent No.2 herein used to come to there for making bill payments.
ii) In the said process, respondent No.2 got acquaintance with the petitioner herein which ultimately led them to fell in love.
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iii) Thereafter, they got married and started living in a rented house at Cheppal Bazar.
iv) After marriage, respondent No.2 looked after the petitioner well for some time and when she got pregnant, he stopped coming to see her.
v) On enquiry, the petitioner came to know that respondent No.2 had already married and got two children.
vi) Then, the petitioner lodged a complaint with Begumbazar Police Station, who in turn registered a case in Crime No.162 of 2015 on 05.10.2015 against respondent No.2 for the offences under Sections 493, 495, 420 and 406 of IPC.
5. The police after completion of investigation filed charge sheet against respondent No.2 for the aforesaid offences and the same was taken on file by the learned Magistrate as C.C. No.1062 of 2016, and proceeded with trial.
6. During pendency of the above C.C., the prosecution examined the petitioner as PW.1 and when it was coming up for her cross-examination, the prosecution filed an application vide Crl.M.P.No.3028 of 2018 under Section - 311 of Cr.P.C. seeking her recall to give further chief-examination and for marking further documents. The learned Magistrate dismissed the said petition vide KL,J 3 Crl.P. No.514 of 2019 order dated 10.12.2018. Aggrieved of the said order, the petitioner filed the present petition.
7. CONTENTION OF PETITIONER:
(i) She was examined as PW.1 in the above C.C., and the case stood posted for her cross-examination.
(ii) Then she filed an application vide Crl.M.P. No.3028 of 2018 under Section - 311 of Cr.P.C. on the ground that some important documents need to be filed and marked through her as the same are crucial not only to bring the guilt of the accused home, but also to assist the Court for better adjudication of the case;
(iii) She did not depose some important facts of the case in her deposition which is very much essential for prosecution case.
(iv) But, the Magistrate without considering the same properly, dismissed the above petition which is illegal.
(v) The Magistrate ought to have seen that the petitioner had categorically stated the entire facts in her statement recorded under Section - 161 of Cr.P.C., but missed some of them in her chief examination.
(vi) The Magistrate also ought to have seen that the petitioner is not introducing any new documents and that not filling up any lacunas or gaps;
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(vii) The Magistrate also ought to have seen that cross-
examination of PW.1 was not yet commenced by the date of filing the said petition.
(viii) Thus, the Magistrate erred in dismissing the petition and, therefore, the order under challenge is liable to be quashed.
8. CONTENTIONS OF RESPONDENT No.2 BEFORE THE TRIAL COURT:
(i) The prosecution has not mentioned the nature of documents to be marked in the petition.
(ii) The prosecution has not even mentioned the grounds on which further chief examination of PW.1 is required.
(iii) The prosecution filed the petition only to fill up lacunae in the evidence of PW.1.
9. In view of the above rival submissions, it has to be seen whether the trial Court was erred in dismissing the petition filed under section - 311 of Cr.P.C. or not?
10. FINDING OF THE COURT:
i) It is not in dispute that the petitioner herein and respondent No.2 are wife and husband and that matrimonial disputes arose between them, which ultimately leading to filing the above case against respondent No.2 herein.
ii) The petitioner herein was examined as PW.1 on 30.07.2018 and marked Ex.P1 complaint on behalf of prosecution. When the KL,J 5 Crl.P. No.514 of 2019 matter was posted for cross-examination of PW.1, the prosecution has filed Crl.P.No.3028 of 2018 on 20.08.2018 itself to recall PW.1 for further chief examination and for marking certain documents. Respondent No.2 herein filed his counter opposing the same. The trial Court on consideration of the contentions on either side and the facts of the case, dismissed the said petition vide order dated 10.12.2018.
iii) A perusal of the record including contents of the complaint dated 05.10.2015 and charge sheet would reveal that the petitioner herein has specifically alleged that respondent No.2 has promised her to marry and has induced her saying that he is unmarried. Under the said promise, the petitioner has married respondent No.2. Thereafter, respondent No.2 exploited the petitioner herein sexually. As on the date of lodging the complaint, she was nine months pregnant. It is also specifically alleged in the complaint dated 05.10.2015 that respondent No.2 has taken 14 tulas of gold from the petitioner and used it for his own purpose. Thus, respondent No.2 has deceived the petitioner herein. In her statement recorded under Section - 161 of Cr.P.C., the petitioner has specifically stated all the said facts.
iv) A perusal of the record would also reveal that the petitioner herein gave birth to a male child, by name, B. Mayank. Therefore, the petitioner herein wanted to file Birth Certificate dated 23.01.2019 issued by the GHMC to show that she was blessed with a male child through respondent No.2, and receipts issued by Ramu Jewellers, KL,J 6 Crl.P. No.514 of 2019 Siddiamber Bazar, Hyderabad, to prove that she had purchased the jewellery (14 tulas). A perusal of the birth certificate would reveal that name of respondent No.2 is mentioned as father, while the petitioner as mother and the place of birth is at Eshwar Lakshmi Hospital, Hyderabad.
v) As discussed supra, chief-examination of petitioner was recorded on 13.07.2018 as PW.1, and her cross-examination was deferred at the request of learned counsel for respondent No.2 on payment of costs of Rs.300/-. At that stage, the prosecution has filed the above said application under Section - 311 of Cr.P.C. on 20.08.2018 itself i.e., before commencement of cross-examination of PW.1. In the said petition, it is specifically contended that some important documents need to be filed and marked through PW.1, victim. The said facts were not considered by the trial Court in the impugned order. The Court below has dismissed the said application on the ground that witness will be briefed by the prosecution before adducing evidence and prosecution ought to have taken all necessary steps to see that all points are covered in chief-examination. But, the said approach of the Court below is incorrect.
vi) The Hon'ble Supreme Court as well as this Court time and again, in a catena of judgments, held that Courts have to adopt liberal approach while dealing with applications under Section - 311 of Cr.P.C. It is also relevant to note that in Mannan Shaikh v. State of KL,J 7 Crl.P. No.514 of 2019 West Bengal1, the Apex Court categorically held that power to recall the witness is to be exercised with circumspection and only with the object of arriving at a just decision of the case and the same should not prejudice the accused and should not permit to fill up the lacuna by the prosecution. The said principle was also followed by the Uttarakhand High Court in Vipin v. State of Uttarakhand2.
vii) In view of the law laid down by the Apex court, coming to the case on hand, as discussed above, the prosecution has filed the above petition under Section - 311 of Cr.P.C. before commencement of cross-examination of PW.1 and PW.1, victim, has specifically made the above said allegations against respondent No.2 herein. According to this Court, the documents sought to be filed and marked by the prosecution through PW.1 are relevant. The Court below erred in dismissing the application filed under Section - 311 of Cr.P.C. and, therefore, the order under challenge is liable to be set aside by allowing the petition to recall PW.1 for further chief-examination.
11. CONCLUSION:
In view of the aforesaid discussion, the present Criminal Petition is allowed, and the order dated 10.12.2018 passed by the learned XVII Additional Chief Metropolitan Magistrate, Nampally, Hyderabad in Crl.M.P. No.3028 of 2018 in C.C. No.1062 of 2016 is hereby quashed by allowing Crl.M.P. No.3028 of 2018 to recall PW.1 for further chief-examination and marking relevant documents in C.C. 1 . (2014) 13 SCC 59 2 . 2018 Crl.L.J. 150 KL,J 8 Crl.P. No.514 of 2019 No.1062 of 2016. Learned Magistrate shall afford an opportunity to Respondent No.2 to cross-examine PW.1. However, the interim stay granted by this Court on 22.07.2021 stands vacated.
As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 04th August, 2021 Mgr