Madhya Pradesh High Court
Smt. Rameshwary Thakur vs Lokesh on 2 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 2nd OF APRIL, 2024
MISC. CRIMINAL CASE No. 561 of 2024
BETWEEN:-
SMT. RAMESHWARY THAKUR D/O BHOJRAJ
NAGPURE W/O KHET SINGH THAKUR, AGED
ABOUT 58 YEARS, R/O VILAGE SAVARGAON AT
PRESENT R/O C/O ALPA THAKUR, SUPERVISING
ENGINEER(VIJAY NAGAR) RAMESHWAR ZONW,
KUSHWARI ROAD, MPPKVV VIJAY NAGAR
JABALPUR` (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VAIBHAV JAIN - ADVOCATE )
AND
LOKESH S/O RAMADHAR TIWARI, AGED ABOUT
50 YEARS, OCCUPATION: CASTE BRAHMAN R/O
VILAGE RAMPAYLI, POLICE STATION
RAMPAYLI, TEHSIL VARASEONI DISTRICT
BALAGHAT (MADHYA PRADESH)
.....RESPONDENT
(NONE )
This application coming on for admission this day, the court
passed the following:
ORDER
1. This application under Section 482 of Cr.P.C. has been filed against the order dated 11.12.2023 passed by JMFC, Varaseoni, District Balaghat in complaint case SCNIA 29/2023, by which application 2 filed by the applicant under Section 311 of Cr.P.C. for further examination of the complainant has been rejected.
2. By referring to the order sheet dated 3.10.2023 it is submitted by counsel for the applicant that the complainant was examined and cross-examined by Shri K. B. Shukla, counsel for the applicant. On the very same day, the complainant closed her evidence and accordingly, the case was fixed for 27.10.2023 for recording accused statement. On 27.10.2023 the applicant did not appear and accordingly, the case was fixed for 2.11.2023 for recording of accused statement. Accused statement was recorded on 2.11.2023. On 22.11.2023 applicant submitted an application under Section 437 of Cr.P.C. which was allowed and the case was fixed for 5.12.2023 for recording of defense evidence. On 5.12.2023 applicant changed her counsel and Shri Abhishek Jain filed his Vakalatnama by replacing Shri K. B. Shukla. On the very same day, applicant filed an application under Section 311 of Cr.P.C. for recall of the complainant on the ground that certain questions which were required to be put to the complainant were not put up for the reason that applicant is resident of Varaseoni, District Balaghat, therefore, she could not contact her counsel well in advance. Trial Court by the impugned order has rejected the said application.
3. Challenging the order passed by the court below, it is submitted by counsel for the applicant that he does not wish to press this application so far as rejection of application under Section 311 of Cr.P.C. is concerned. However, it is submitted that on 19.12.2023 applicant had filed an application under Section 315 of Cr.P.C. expressing her willingness to get herself examined as a witness. However, the said application has been rejected.
34. Heard the learned counsel for the applicant.
5. In the entire application filed under Section 482 of Cr.P.C., the applicant has not challenged the said order and even in the prayer clause has not challenged the said order.
6. Cause title of the application filed under Section 482 of Cr.P.C. reads as under :-
"PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE.
Being aggrieved by the order dated 11.12.2023 passed by Judicial Magistrate First Class Varaseoni, District Balaghat in complaint case SCNIA 29/2023, whereby the learned Trial Court has rejected the application for reexamination of complainant, the petitioner begs to prefer this petition under Section 482 of the Code of Criminal Procedure to secure ends of justice on the following brief facts and grounds."
7. Prayer clause of the application reads as under :-
"It is, therefore, prayed that the Hon'ble High Court may kindly be pleased to allow the petition. The impugned order dated 11.12.2023 may kindly be set- aside and the application filed by the petitioner under Section 311 of the Criminal Procedure Code may kindly be allowed in the interest of justice."
8. Faced with such a situation, it is submitted by counsel for the applicant that since he had prayed for quashment of order dated 11.12.2023 and since the said order also includes rejection of the application filed under Section 315 of Cr.P.C., therefore, it should be 4 presumed that rejection of her application under Section 315 of Cr.P.C. was also challenged.
9. It is also submitted that in the ground (f) it has been mentioned that Court below has failed to see that the applicant is a competent witness and she has a right to defend her case.
10. Considered the submissions made by counsel for the applicant.
11. The moot question for consideration is as to whether the applicant has challenged the order by which her application under Section 315 of Cr.P.C. was dismissed or not?
12. Although it was contended by counsel for the applicant that since he has challenged the order dated 11.12.2023, therefore, it should be presumed that rejection of her application under Section 315 of Cr.P.C. is also under challenge but the said submission is misconceived. Application under Section 315 of Cr.P.C. was filed by the applicant on 19.12.2023 i.e. subsequent to rejection of her application filed under Section 311 of Cr.P.C. Therefore, the submission that prayer clause of the present application also includes rejection of the application under Section 315 of Cr.P.C. is misconceived and without any basis.
13. However, in order to do complete justice, the submissions are considered.
14. In order dated 11.12.2023 the Trial Court has specifically mentioned that the applicant has not made any request for grant of time to examine any defense witness or has not made any request for her own examination as a witness and accordingly, the case was fixed for final arguments.
15. Admittedly, on 11.12.2023 or prior thereto no application was filed by the applicant praying for grant of time to examine defense witness 5 or to examine herself as a witness. On 22.11.2023 Trial Court had granted time to the applicant to examine defense witness and the case was fixed for 5.12.2023. But applicant instead of examining her defense witnesses or instead of filing an application under Section 315 of Cr.P.C., chose to file an application under Section 311 of Cr.P.C. Even when application under Section 311 of Cr.P.C. was rejected, no prayer was made either verbally or in writing to examine the applicant as a witness under Section 315 of Cr.P.C. If no prayer is made by the applicant, then it is not expected from the Court to grant any opportunity. It appears that the applicant is trying to delay the proceedings by hook or crook.
16. Be that whatever it may be.
17. On 11.12.2023 since applicant did not file any application under Section 315 of Cr.P.C. or even did not make any verbal request for her examination as a witness, then the Court was left with no other option but to fix the case for final argument.
18. As no jurisdictional error was committed by the Trial Court, accordingly, the application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE JP JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64a5a, postalCode=482001, st=Madhya Pradesh, PAROUHA serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF10402B1914 3AD99, cn=JITENDRA KUMAR PAROUHA Date: 2024.04.04 05:10:55 -07'00'