Accused can file Section 311 CrPC application for defence evidence post-Section 313 declination; trial court cannot deny on delay/negligence grounds or pre-judge proposed defence merits. (24 words)

JUDGMENT :
Virender Singh, Judge

Petitioner Kapil Dev has filed the present petition, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘BNSS’), challenging the order dated 26.4.2025, passed by the Court of learned Chief Judicial Magistrate, Mandi, District Mandi, H.P. (hereinafter referred to as ‘the trial Court’) in application filed under Section 311 Cr. P.C., titled as, ‘State of H.P. versus Kapil Dev’.

2. Vide order dated 26.4.2025, the learned trial Court has dismissed the application of the petitioner, filed under Section 311 Cr.P.C.

3. For the sake of convenience, parties to the present lis, are referred to, in the same manner, in which, they are referred to, by the learned trial Court.

4. Brief facts, leading to filing of the present petition, before this Court, as emerge from the record, are as under:

Perusal of the record shows that the Police of Police Station, Balh has filed the charge sheet against the accused, under Section 173 (2) Cr.P.C., for the commission of offences, punishable under Sections 435 and 506 IPC, upon which, the learned trial Court has taken the cognizance and the accused has been charge- sheeted, for the commission of offences, punishable under and 506 , vide order dated 16.12.2021. The charges, so framed against the accused, were put to him, to which, he pleaded not guilty and claimed to be tried. Consequently, the prosecution has been directed to adduce evidence and it examined, as many as, 13 witnesses. After closure of evidence, entire incriminating evidence, appearing against the accused, was put to him, in his statement, recorded under Section 313 Cr.P.C., on 6.1.2024.

4.1 In his statement, recorded under Section 313 Cr.P.C., when a question was put to him whether he want to lead evidence in defence, he replied in negative. Thereafter, the matter was adjourned for arguments, on various dates.

4.2 On 4.9.2024, accused has moved application, under Section 311 Cr.P.C. As per the averments made in the application, the applicant has pleaded that he has not committed the offence, as alleged, as on the day of occurrence, he was performing his duties at Chopal and in order to probabilize/prove the said defence, accused prayed that he may be permitted to produce the documents, i.e. the attendance certificate, and to examine the Principal of the school, where he is working, in order to prove the said document.

5. The said application has been contested by the respondent-State by pleading that sufficient opportunities have already been granted to the accused to lead defence evidence and despite that, he could not lead any evidence in defence.

6. The learned trial Court, vide order dated 26.4.2025, has dismissed the application, mainly on the ground that the document, sought to be produced, was not produced, at an earlier stage, nor witnesses have been confronted with regard to said document, in order to probabilize the defence of the accused that he was not present on the spot, on the day of occurrence.

7. Another ground, which the learned trial Court has given for dismissal of the application, is to counter the probable/proposed defence of the accused, by holding that complainant in her testimony has deposed that accused owns a car and he can easily reach Mandi in less time, as taken, while travelling through public transport.

8. The said findings have been assailed by the accused, before this Court, mainly on the ground that the learned trial