Rameshwar Lodhi vs The State Of Madhya Pradesh
2021 Latest Caselaw 7691 MP

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                HIGH COURT OF MADHYA PRADESH
                          CRR.No.2887/2021
                (Rameshwar Lodhi Vs. The State of M.P.)

Gwalior Bench : Dated : 23.11.2021

      Shri Vivek Vyas, learned counsel for the applicant.

      Shri Ramadhar Chaubey, learned Public Prosecutor for the State.

      The present criminal revision under Sections 397, 401 of Code

of Criminal Procedure has been filed by the applicant against the order

dated 25.10.2021 passed by the Additional Sessions Judge,

Mungawali, District Ashoknagar in S.C.No.08/2015, whereby an

application under Section 311 of Cr.P.C. filed by the respondent has

been allowed.

It is the submission of learned counsel for the applicant that

complainant lodged an F.I.R. against the applicant for the offence

punishable under Sections 341, 354, 506B of IPC and Sections 11, 12

of the Protection of Children from Sexual Offences Act (hereinafter

referred to as POCSO Act for brevity) at Crime No.52/2015, Police

Station Mungawali, District Ashoknagar. After registration of F.I.R.,

the police investigated into the matter and accused person has been

arrested and the statements of witnesses have been recorded under

Section 161 of Cr.P.C.. After completion of charge sheet and other

formalities, the charge sheet has been filed before the trial Court. All

the prosecution witnesses have been examined before the trial Court,

thereafter, the prosecution submitted an application under Section 311

of Cr.P.C. with praying for submitting mark sheet before the trial

HIGH COURT OF MADHYA PRADESH CRR.No.2887/2021 (Rameshwar Lodhi Vs. The State of M.P.)

Court. Thereafter, the applicant filed reply to the said application and

after hearing both the parties, the application under Section 311 of

Cr.P.C. filed by the prosecution has been allowed by the trial Court

vide order dated 25.10.2021. Learned trial court did not consider the

material available on record and committed grave error while allowing

the application of the respondent. It is further submitted that after

completion of all prosecution examination, application under Section

311 of Cr.P.C. cannot move before the competent Court for filling the

lacuna. It should have been seen at the time of filing the charge sheet

that the prosecutrix is major or minor because if the prosecutrix is

major, the trial will go on before the JMFC Court and if the prosecutrix

is minor, trial will go no in Special Court. He relied upon the judgment

in the case of Rajendra Prasad Vs. Narcotic Cell reported in 1999

SCC (Cri.) 1062.

On the other hand, learned Public Prosecutor for the State

opposed the prayer and fairly submitted that the order impugned

passed by the trial Court is just and proper and does not call of any

interference.

Heard the learned counsel for the parties and perused the record

appended thereto.

This is a case where the applicant is facing extra ordinary

jurisdiction for the offence under Section 482 of Cr.P.C. in which

HIGH COURT OF MADHYA PRADESH CRR.No.2887/2021 (Rameshwar Lodhi Vs. The State of M.P.)

looking to the facts and circumstances of the case, the trial Court has

recalled the witness to submit the document i.e. mark-sheet of

prosecutrix to lead the evidence regarding her status being

juvenile/minor. Since the matter pertains to provisions of POCSO Act,

in which the age of victim assumes importance and when the

prosecution did not file the document at the relevant point of time, then

in the interest of justice, if the documents are allowed to be filed by

recalling the documents at subsequent stage, then it is as per the spirit

of POCSO Act which is meant to protect the children from on slot of

lust and physical violation. It does not mean to filling the lacuna in

prosecution case, it is impact submitting the documents which could

not have been filed at an early date. The trial is expected to take out

chaff from the grain. Prejudice has been caused to the accused.

Therefore, the trial Court did not commit any error in passing the

impugned order.

In the given facts and circumstances of the case, no illegality,

perversity and impropriety has been caused.

Resultantly, the revision stands dismissed.

                                                            (Anand Pathak)
AK/-                                                            Judge
   ANAND KUMAR
   2021.11.30
   10:26:11 +05'30'