Teertho vs State Of Chhattisgarh
2022 Latest Caselaw 5743 Chatt

                                   1


                                                                      NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                        Cr.M.P. No. 1110 of 2022

      Teertho, S/o Gurucharan, aged about 25 years, Caste Kolta, R/o
      Village Lakhanpurdipa, P.S. Singhoda, Tehsil Saraipali, Distt.
      Mahasaund (C.G.)
                                              ---- Petitioner/accused

                                  Versus

      1.    State of Chhattisgarh, through Station House Officer, P.S.
      Singhoda, District Mahasamund (C.G.)

      2.     Miss Xyz (Real name not disclosed in the cause title)

                                                        ---Respondents

For Petitioner           : Mr. Sushobhit Singh, Advocate.
For Respondent No.1      : Mr. Gurudeo I. Sharan, Govt. Adv.
For Respondent No. 2     : Mr. Sanjay Agrawal, Advocate.

                Hon'ble Mr. Justice N.K. Chandravanshi

                             Order On Board
14-09-2022

1.    The petitioner has preferred this petition under Section 482 of the
Code of Criminal Procedure, 1973 (henceforth " Cr.P.C.) against order dated
22.06.2022 whereby the application filed by respondent No. 2/complainant
under Section 311 of the Cr.P.C. was allowed and on 25.06.2022,
respondent No. 2 again filed an application under Section 311 of the Cr.P.C.,
in which no substantive order has been passed.

2.    Facts

of the case, in nutshell, is that on 18.8.2020, when respondent No. 2/complainant was returning after offering prayer in the Mangla temple, at that time, petitioner/accused went there and forcefully caught hold of her hands and with an intention to outrage her modesty, the petitioner/accused pressed her breast and thereby he molested her. On being report made to the police, the police officials did not take any action against the petitioner/accused, hence, she filed complaint case, which was registered by Special Judge (POCSO), Saraipali, District Mahasamund and charges

under Sections 354 & 506 B of the Indian Penal Code (for short 'IPC') and Sections 3, 4 & 5 of the Protection of Children from Sexual Offences Act, 2012 (henceforth "POCSO Act") were framed and after recording of statement of complainant side, statement of accused under Section 313 of the Cr.P.C. was also recorded, thereafter, respondent/complainant filed an application under Section 311 of the Cr.P.C. for recording of statement of Sandeep Rana, who is said to be the eye-witness to the incident, which was allowed and his statement was recorded as per order dated 25.06.2022.

3. On 25.6.2022, complainant again filed an application under Section 311 of the Cr.P.C. to afford opportunity for recording statement of Headmaster, as it is a case of POCSO Act also, hence, the petitioner has filed this petition challenging the order dated 22.6.2022 & 25.6.2022.

4. Learned counsel for the petitioner would submit that while filing complaint case, respondent No. 2/complainant has supplied the list of her witnesses, wherein name of alleged Sandeep Rana was not mentioned, despite that after completion of evidence of complainant and even after examination of petitioner/accused under Section 313 of the Cr.P.C., she has been permitted to examine aforesaid witness i.e. Sandeep Rana and, thereafter, respondent/complainant has again filed an application under Section 311 of the Cr.P.C. on 25.6.2022 for examination of Headmaster. It is further submitted that since the petitioner/accused has been examined by learned Special Judge POCSO under Section 313 of the Cr.P.C., hence, respondent/complainant could not be permitted for examination of additional witnesses, because if additional witnesses are allowed to record their evidence, the petitioner will loose his valuable right under Section 313 of the Cr.P.C. to rebut the fresh evidence led against him, despite that learned Court below has allowed the application and permitted to examine additional witness i.e. Sandeep Rana, hence,

order impugned suffers illegality and infirmity warranting interference by this Court in the instant petition. He placed reliance upon the judgment of the Supreme Court in the matter of State (NCT of Delhi) v. Vivek Choudhary 1 in support of his submissions.

5. On the other hand, learned counsel for the respondent No. 2/complainant would submit that it has been mentioned in the complaint itself that at the time of incident, Sandeep Rana was present and he intervened and rescued the complainant from the clutches of the petitioner/accused. It has also been mentioned in the complaint that petitioner/accused is a person of influential and wealthy family, therefore, earlier Sandeep Rana had denied to give evidence from her side, therefore, his name was not mentioned in the list of witnesses of respondent/complainant, subsequently, the said witness agreed to give evidence from her side, therefore, the application under Section 311 of the Cr.P.C. was moved by the respondent/complainant, which was allowed and as per order sheet dated 25.06.2022, evidence of that witness i.e. Sandeep Rana has been recorded, therefore, the prayer made by petitioner/accused in respect of order dated 22.6.2022 passed by learned Special Judge has become infructuous. It is further submitted that the petitioner has also challenged the order dated 25.6.2022, but on the said date i.e. on 25.6.2022, no substantive order has been passed by learned trial Court, which call for any indulgence of this Court, hence, the petitioner is not entitled to get any relief as sought for by him.

6. Learned counsel for the State/respondent No. 1 adopted the arguments advanced by counsel for respondent No. 2/complainant.

7. Heard learned counsel appearing for the parties and perused the orders impugned and the material available on record.

1 Criminal Appeal No. 224 of 2014, decided on 21st January, 2014

8. While considering the application under Section 311 of the Cr.P.C., the Courts should keep in mind, that granting permission for additional evidence is, in the interest of justice and for just decision of the case, as it is cardinal principle that the truth must be permitted to be reached.

9. Hon'ble Supreme Court in the matter of Varsha Garg v. State of Madhya Pradesh & others 2 while considering the provisions contained in Section 311 of the Cr.P.C. has held in paragraphs 37, 43, 44 & 45 as under :-

" 37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.

43. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311.

44. In the decision in Zahira Habibullah Sheikh (5) v.

State of Gujarat 3, which was more recently reiterated in

2 2022 SCC Online SC 986 3 (2006) 3 SCC 374

Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd.4, the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that:

37. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

(emphasis supplied)

45. The right of the accused to a fair trial is constitutionally protected under Article 21. However, in Mina Lalita Baruwa (supra), while reiterating Rajendra Prasad (supra), the Court observed that it is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. In Rajendra Prasad (supra), the Court had held that:

―8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be 4 (2008) 11 SCC 108

treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.‖

(emphasis supplied)

10. In the instant petition, the the petitioner has challenged the order dated 22.6.2022 passed by learned Special Judge (POCSO), Saraipali, District Mahasamund (C.G.) whereby the application filed by respondent No. 2/complainant was allowed and she was permitted to examine Sandeep Rana. Perusal of order-sheet dated 25.6.2022 of the court below would show that witness Sandeep Rana has been examined on that day and after his examination, he was set free, thus, the order dated 22.06.2022 under challenge has already been complied with. Moreover, aforesaid witness was allegedly rescued complainant from petitioner, thus, he is eye-witness to the incident. It is also said that petitioner being a person of influential family, therefore, earlier that witness had refused to give evidence from her side and therefore, his name was not mentioned by the complainant in the list of witnesses, but subsequently, he showed his willingness to examine himself. Thus, since he is said to be eye witness of the case, hence, it cannot be said that granting permission vide order dated 22.6.2022 for his examination, suffers any illegality or infirmity.

11. While making submissions, learned counsel for the petitioner mainly contended that since statement of the petitioner/accused under Section 313 of the Cr.P.C. has already been recorded, therefore, providing further opportunity of examination of aforesaid witness to the

complainant will cause prejudice to the complainant, as he would be deprived of his right to rebut the additional evidence and he would not be able to record his statement under Section 313 of the Cr.P.C. twice.

12. Contention raised by learned counsel for the petitioner is not correct because, if any additional evidence is permitted to be taken to the prosecution/complainant after recording of statement of accused under Section 313 of the Cr.P.C., thereafter, additional statement of accused will have to be recorded by the Court and accused would be provided all opportunities to rebut / defend himself in respect of those additional evidence. In criminal cases, nothing can be done against accused without providing him opportunity of proper hearing. Therefore, apprehension expressed by learned counsel for the petitioner is not just & proper.

13. So far as order dated 25.6.2022 is concerned, order sheet reveals that on that date, no substantive order was passed by the learned trial Court and on that day only application under Section 311 of the Cr.P.C. was filed by the respondent/complainant, no any substantive order has been passed on that day by the trial Court, therefore, the order dated 25.6.2022 does not call for any interference under Section 482 of the Cr.P.C.

14. In view of foregoing discussions and observations made by Hon'ble Supreme Court in the case of Varsha Garg (supra), this Court does not find any infirmity or illegality in the order under challenge, warranting indulgence of this Court in the instant petition.

15. Consequently, the petition under Section 482 of the Cr.P.C. fails and is hereby dismissed. Interim relief granted by this Court vide order dated 13.07.2022 shall stand vacated.

Sd/-

(N.K. Chandravanshi) Judge