Shivram vs State Of Madhya Pradesh

(1) The applicant has preferred this petition under Section 397 read with Section 401 of Cr.P.C. against the order dated 22.11.2018 whereby application filed by the applicant under Section 311 of Cr.P.C. for recalling the prosecutrix for further cross examination and mobile recording of their conversation has been rejected.

(2). Brief facts of the are that on 16.05.2018 at about 11:00 pm at night, applicant/accused Shivram took away the prosecutrix from Village Kundiya walking upto the main road and then in the morning they went to Sendhwa by bus. From Sendhwa they proceeded for Shahda (Maharashtra), where they stayed for about a month. The applicant/accused brought the prosecutrix back on 15.06.2018. The matter was reported to the police station Varla, District Badwani. On that basis crime No.125/2018 was registered against the applicant. After investigation charge sheet was filed and case was committed to the Session Court for trial.

(3). The trial court framed the charges against the applicant and then case was fixed for recording the prosecution evidence. On 03.10.2018, the prosecutrix has been examined and after completion of his cross examination, she was discharged. Thereafter, the applicant has moved an application under Section 311 of Cr.P.C. for recalling the prosecutrix for further cross examination in the light of newly found documents written by the prosecutrix to the applicant and with respect to the mobile recording of the conversation between applicant and prosecutrix. However, the said application was dismissed by the trial court on 22.11.2018 on the ground that documents was in possession of the applicant prior to the recording the evidence of the prosecutrix and he has failed to explain that why these documents has not filed earlier, therefore, sufficient reason is not made for recalling the prosecutrix for further cross examination. Being aggrieved by the aforesaid, applicant has filed this petition.

(4). Learned counsel for the applicant has submitted that it is well settled that the exercise of power under Section 311 of Cr.P.C. should be restored to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, however, this fact has been overlooked by the trial court while rejecting the application.

(5). On the other hand learned Public Prosecutor for the respondent has submitted that the trial court has rightly rejected the application and the order of trial court does not warrant any interference.

(6). I have heard learned counsel for the parties and perused the record.

(7). From perusal of the record, it appears that the letters which is alleged to have been written by the prosecutrix to the applicant and mobile recording with respect to conversation between the applicant and prosecutrix was in possession of the applicant prior to the recording the statement of prosecutrix before the court, however, these documents has not been produced by the applicant in the court and they were not put up before the prosecutrix during her cross examination, which was concluded on 03.10.2018. The trial court has already given ample opportunity to the applicant to cross examine and demolished the credibility of the prosecutrix. Merely on the documents which are found latter on to the applicant which might be helpful to him would not sufficient to permit him to recall the prosecutrix for cross examination. Therefore, this court is of the view that the trial court has not committed any error in rejecting the application filed by the applicant under Section 311 of Cr.P.C.

(8). It is also worth to note that in the case of the Sethuraman Vs Rajamanickam ( 2009 ) 5 SCC 153 the Hon'ble Apex Court has held that the order passed by the trial court refusing the application under Section 91 and 311 of Cr.P.C. were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397 (2) of Cr.P.C. This, order did not, in any manner, decided anything finally. Therefore, the revision filed under Section 397 read with section 401 of Cr.P.C. against the rejection of the aforesaid application is clearly not maintainable.

(9). In the light of the aforesaid judgment, this revision petition filed against the interlocutory order passed by trial Court rejecting the application filed under Section 311 of Cr.P.C. is not maintainable also. Accordingly, the present revision petition is hereby dismissed.