Gone Nikhitha Alias Sirisala Rajani vs State Of Telangana

Heard Mr. T. Jagan Mohana Chary, learned counsel for the petitioner, Mr. Sri K. Kiran Kumar, learned counsel for respondent Nos.2 to 4 and 6 and learned Assistant Public Prosecutor appearing on behalf of respondent No.1.

This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the docket order dated 15.10.2018 passed in Crl.M.P. No.2272 of 2018 in C.C. No.559 of 2012 by the I Additional Judicial Magistrate of First Class, Warangal.

Perusal of the record would reveal that the petitioner herein is the de facto complainant in Crime No.152 of 2012 of Women Police Station, Warangal (Urban). She had lodged a complaint on 06.11.2012 with the said Police Station against respondent Nos.2 to 6 herein who, in turn, registered the said crime for the offences under Section - 498A of IPC and Sections - 3 and 4 of the Dowry Prohibition Act, 1961. After completion of investigation, the Investigating Officer laid the charge sheet against the accused and the same was taken on file vide C.C. No.559 of 2012.

Perusal of the record would also reveal that accused Nos.4 and 5 had filed a petition under Section - 482 of the Cr.P.C. vide Crl.P. No.3042 of 2014 to quash the proceedings in C.C. NO.559 of 2012 against them. Considering the submissions made by the learned counsel for accused Nos.4 and 5, vide order dated 08.12.2016, this Court disposed of the said Criminal Petition dispensing with the appearance of accused Nos.4 and 5 except on the dates when their presence is specifically required by the Magistrate.

Perusal of the record including the daily status of the said C.C. filed by the learned counsel appearing for respondent Nos.2, 3, 4 and 6 would reveal that the matter underwent several adjournments on various reasons including the stay granted by this Court and request made by the prosecution as well as the accused. The matter was also adjourned on the ground of non-service of summons, and at the request of the accused for cross-examination of prosecution witnesses. The Calendar Case is of the year 2012. This Court has not granted any order staying the proceedings in the said C.C. Even then, it underwent several adjournments on the ground of stay. The docket proceedings would reveal the said fact. The prosecution had also filed an application under Section - 309 of the Cr.P.C. seeking an adjournment.

Finally, the prosecution has filed a petition under Section- 311 of the Cr.P.C. vide Crl.M.P. No.2272 of 2018 in C.C. No.559 of 2012 seeking to recall LWs.2 to 7 for the purpose of adducing their evidence which was closed on 05.10.2018 on the following grounds:

i. LW.2 is suffering from gangrene in two legs and he is confined to bed;

ii. LW.3 also fell sick;

iii. LWs.4 to 7 were out of station in view of their respective avocations and occupations on the aforesaid date of hearing;

iv. Their non-appearance is neither willful, nor wanton;

v. LWs.2 to 7 are material witnesses and their evidence is very much essential to elicit material facts of the case;

With the above said grounds, the prosecution sought to recall LWs.2 to 7.

The said petition was resisted by the accused on the ground that despite giving ample opportunity, they failed to avail the same and without mentioning satisfactory and cogent reasons, the prosecution has filed the said petition seeking to recall LWs.2 to 7.

Vide order dated 15.10.2018, the learned Magistrate had dismissed the said petition on the ground that the prosecution failed to file any medical certificate in proof of their contentions with regard to the ailments being suffered by LWs.2 and 3. Despite granting 50 - 60 adjournments, they failed to appear and depose. They have filed the said petition only to drag on the proceedings. It is relevant to note that challenging the impugned order dated 15.10.2018 passed in Crl.M.P. No.2272 of 2018, the prosecution has filed Criminal Revision Petition vide Crl.R.P. No.37 of 2018 before the II Additional Sessions Judge, Warangal, and the learned Revisional Court vide order dated 23.09.2021 dismissed the revision petition on the ground that the said order is an impugned order and, therefore, the revision is not maintainable. The Revisional Court has also relied upon the principle laid down by the Hon’ble Supreme Court Madhu Limaye v. State of Maharashtra 1978 Crl.L.J. 165. Now, the de facto complainant has filed the present petition under Section - 482 of the Cr.P.C. challenging the impugned order dated 15.10.2018 passed by the learned Magistrate by seeking leave of this Court. This Court, vide order dated 15.02.2022, granted leave in I.A. No.1 of 2022. Thus, the present petition is maintainable.

Mr. T. Jagan Mohana Chary, learned counsel for the petitioner - de facto complainant would submit that the matter underwent several adjournments for various reasons including the pendency of Crl.P. No.3042 of 2014 before this Court and the order passed therein. The listed witnesses were present before the trial Court on some occasions; even then at the request of the accused, the matter was adjourned. Therefore, according to him, there was no fault on the part of the prosecution for non-appearance of LWs.2 to 7. Whereas, Mr. Kiran Kumar, learned counsel for respondent Nos.2, 3, 4 and 6, referring to the docket proceedings, would submit that despite giving 50 - 60 adjournments, LWs.2 to 7 did not appear before the trial Court and only to fill up lacunae, they have filed the said petition.

As stated above, the docket proceedings of Calendar Case No.559 of 2012 would reveal that the same was adjourned about twenty (20) times by mentioning ‘stay’, though there was no stay. It was adjourned only on the ground of trial and for further evidence and it was also adjourned on the ground of pendency of miscellaneous applications. LW.1 was present and her cross-examination was deferred at the request of some of the accused. The matter underwent for certain period on the ground of non-service of summons to the above said listed witnesses. Some times at the request of both the parties, adjourned the matter. Therefore, perusal of the docket would reveal that the matter underwent several adjournments on different reasons including the request made by both sides. Thus, this Court cannot blame either the complainant or the accused. However, while dealing with an application under Section - 311 of the Cr.P.C., Court has to adopt a liberal approach and it has to consider the following important aspects:

i. Whether recall of a witness is required for the purpose of arriving at just conclusion with regard to the truth or otherwise of the allegations;

ii. Whether the accused filed the application to drag on the proceedings; and

iii. Whether the prosecution filed the petition to fill up lacunae.

As stated above, the prosecution filed the application by mentioning the above said specific reasons for recalling LWs.2 to

Thus, the prosecution did not file the said application to fill up lacunae. The reasons assigned are specific.

The trial Court had dismissed the said petition on the ground that the matter underwent 50-60 adjournments, but the trial Court failed to see the reasons for the said adjournments. The trial Court has to see whether recalling of the said witnesses is necessary to come to a just conclusion. Thus, this Court is of the considered opinion that the impugned order is not on sound reasoning. Therefore, the impugned order is liable to be quashed.

The present Criminal Petition is accordingly allowed and the docket order dated 15.10.2018 passed in Crl.M.P. No.2272 of 2018 in C.C. No.559 of 2012 by the I Additional Judicial Magistrate of First Class, Warangal is hereby quashed, and Crl.M.P. No.2272 of 2018 filed by the prosecution under Section - 311 of the Cr.P.C. in C.C. No.559 of 2012 is allowed.

The petitioner herein is the de facto complainant and wife of accused No.1, LW.2 is her father, LW.3 is her mother, while LWs.4 to 7 are panchayat elders. Therefore, the petitioner shall produce the LWs.2 to 7 before the trial Court on the date fixed for recording their evidence without waiting for service of summons on them, and the accused shall proceed with their cross-examination on the date fixed by the trial Court without seeking adjournment on flimsy grounds. Both the petitioner - de facto complainant and the accused shall be mindful of the fact that the Calendar Case is of the year 2012 and the offences alleged against the accused are under Section - 498A of IPC and Sections - 3 and 4 of the Dowry Prohibition Act, 1961, and they shall co-operate with the trial Court in disposal of the C.C. The trial Court shall dispose of C.C. No.559 of 2012 in accordance with law as expeditiously as possible, preferably within a period of two (02) months from the date of receipt of a copy of this order by conducting the proceedings on day-to-day proceedings.

As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.