Madhya Pradesh High Court
Santra vs The State Of Madhya Pradesh on 8 July, 2021
Author: Rajendra Kumar Srivastava
1 CRR-594-2021
The High Court Of Madhya Pradesh
CRR-594-2021
(SANTRA Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 08-07-2021
Heard through Video Conferencing.
Shri Ranjan Banerjee, learned counsel for the petitioner.
Ms. Kamlesh Tamrakar, learned P.L. for the respondent/State.
Thi s revision petition under Section 397/401 Cr.P.C. has been
preferred by the petitioner, being aggrieved by the order dated
22.01.2021 passed by learned 4th ASJ, Chhatarpur in S.T. No. 292/2014
whereby the learned trial court has dismissed the application under
Section 311 Cr.P.C. for recalling the witness/prosecutrix.
According to case, on 17.12.2020, an application under Section
311 Cr.P.C. has been filed by the petitioner/prosecutrix before the trial
Court mentioning therein that she has not given proper statement before
the trial Court on 24.03.2015 due to pressure of police officials but at
present she wants to do so, but learned trial Court dismissed the said
application.
Learned counsel for the petitioner/prosecutrix submits that the
impugned order is illegal and unjustifiable. Petitioner wants to depose
actual facts before the trial Court. It is true, earlier on 24.03.2015, her
statement under Section 164 of Cr.P.C. has been recorded before the trial
Court but she gave the said statement under the pressure of police
officials. Learned trial Court has also ignored the fact that the statement
of petitioner is very important to deliver the fair judgment of the case as
she is victim of the case and as the case belongs to the offence of rape
then her evidence is very necessary. In the interest of justice, petitioner
may be recalled for recording her actual statement before the trial Court.
On 22.01.2021, learned trial Court has dismissed the application of the
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petitioner over looking to the material facts. With the aforesaid he prays
for allowing this revision petition.
On the other hand, learned counsel for the State oppose the prayer
of petitioner's counsel and submits that the revision petition filed by the
petitioner is not maintainable, as it is well-settled principle of law that
against the interlocutory order, revision petition would not lie. Apart
from that, there is no merit in the case to allow the application filed
under Section 311 of Cr.P.C. On 24.03.2015, the statement of prosecutrix
has been recorded and she filed the said application on 17.12.2020 after
passing the period of 5 years. During that period, prosecutrix has not
filed any application or complaint before any Court or Higher Police
Official. The statement of prosecutrix was recorded by the trial Court
continuously two days, but during that period, she did not lodge any
complaint in this regard. The application filed by the applicant is having
no cause and just to delay the trial. With the aforesaid submissions, he
prays for dismissal of this petition.
Heard and perused the case.
According to petitioner's counsel, on 17.12.2020, she has filed an
application under Section 311 of Cr.P.C. for recalling the prosecutrix.
The learned trial Court vide its order dated 22.01.2021 rejected the said
application stating that the examination and cross-examination of
aforesaid prosecutrix/petitioner was conducted on 24.03.2015 to
25.03.2015. The defence counsel has made detailed cross-examination
over the said petitioner/prosecutrix. While arguing this revision petition,
learned P.L. for the respondent/State has raised the ground of
maintainability, therefore, it is necessary to first consider the same.
In the case of Sethuraman Vs. Rajamanickam reported in (2009)
5 SCC 153, the Hon. Apex Court has held as under:-
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"5. Secondly, what was not realized was that the
order passed by the Trial Court refusing to call the
documents and rejecting the application under Section
311 Cr.P.C., were interlocutory orders and as such, the
revision against those orders was clearly barred under
Section 397(2) Cr.P.C. The Trial Court, in its common
order, had clearly mentioned that the cheque was
admittedly signed by the respondent/accused and the
o n l y defence that was raised, was that his signed
cheques were lost and that the appellant/complainant
had falsely used one such cheque. The Trial Court also
recorded a finding that the documents were not
necessary. This order did not, in any manner, decide
anything finally. Therefore, both the orders, i.e., one on
the application under Section 91 Cr.P.C. for production
of documents and other on the application under
Section 311 Cr.P.C. for recalling the witness, were the
orders of interlocutory nature, in which case, under
Section 397(2), revision was clearly not
maintainable....................."
Therefore, it appears that order passed under Section 311 of
Cr.P.C. is interlocutory in nature and against the same, revision petition
is not maintainable.
As far as the short merits of the case is concerned, it appears that
the petitioner took the ground that due to pressure of police officers, she
gave her statement before the trial Court but on perusal of order dated
22.01.2021 as well as statement of petitioner/prosecutrix recorded on
24.03.2015 to 25.03.2015, it seems that the learned trial Court has given
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proper reason for dismissing the said application of petitioner.
In the case of Shyam @ Bagasram vs. State of M.P. reported in
ILR (2018) M.P.1805 in which it is held that statement of prosecutrix
shows that she was duly and effectively cross-examined by the counsel of
the applicant, the said application of petitioner shows that prosecutrix
only wants to change her version in favour of the applicants with
malafidely. Exercise the power under Section 311 of Cr.P.C. cannot be
permitted to the witness to change her earlier statement. Offence under
Section 376 of IPC is also not compoundable under Section 320 of
Cr.P.C., therefore, learned trial Court has rightly rejected the prayer of
petitioner.
Accordingly, this petition is devoid of merits and it is dismissed in
limine and also being not maintainable.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
sp
Digitally signed by SAVITRI PATEL
Date: 2021.07.15 17:45:25 +05'30'
