B.Bhavani vs State Of Telangana
2021 Latest Caselaw 2282 Tel

            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

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

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

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

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.

. (2014) 13 SCC 59

. 2018 Crl.L.J. 150 KL,J

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