The court established that a lack of objection to a prosecution petition limits the ability to challenge the allowance of further evidence under Section 311 Cr.P.C.

ORDER

Petitioner has approached this Court by filing the Crl.M.C. under Section 482 Cr.P.C seeking the following reliefs:

“(i) Quash the order in Crl.M.P.No.161/2023 dated

11-09-2023 in S.C.No.250/2022 on the file of the Fast Track Court, Changanassery.

(ii) Grant such other reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case”.

2. The learned counsel appearing for the petitioner would submit that the petitioner is aggrieved by the fact that a petition filed by the prosecution under Section 311 of the Code of Criminal Procedure was allowed by the court, as is evident from Annexure-A2 proceedings sheet. It is submitted that on 11-09-2023, the following order was passed by the learned Fast Track Special Court (POCSO), Changanassery in S.C.No.250/2022.

“Accused is present. Crl. M.P.161/2023 is allowed.

Issue summons to additional witnesses in the schedule to appear on”.

It is submitted that thereafter on 14-09-2023, the witnesses who were sought to be examined by the prosecution in the petition under Section 311 Cr.P.C. were examined and additional documents were also marked to the prejudice of the petitioner. It is submitted that the order dated 11-09-2023 does not indicate any reason as to why the application under Section 311 Cr.P.C. filed by the prosecution should have been allowed. It is submitted that filing a petition under Section 311 Cr.P.C to cover any lacuna in the prosecution case could not have been permitted by further examination of witnesses and by marking additional documents.

3. The learned Public Prosecutor opposes the grant of any relief to the petitioner. It is submitted that it is not evident as to whether any objection had been filed to the 311 petition filed by the prosecution as Crl.M.P.No.161/2023 in S.C.No.250/2022 on the file of the Fast Track Special Court (POCSO), Changanassery. It is submitted that even according to the petitioner, the witnesses, sought to be re-examined, have been re-examined on 14-09-2023 and further examination of the accused under Section 313 Cr.P.C. has also been conducted. It is submitted that at this stage, it may be improper to consider the prayer made by the petitioner, especially if there is lack of objection raised by the accused to the 311 petition filed as Crl.M.P.No.161/2023 before the Special Court. It is also pointed out that the accused was also given the chance to adduce further evidence, if any, considering the fact Crl.M.P.No.161/2023 was allowed by the court.

4. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the opinion that considering the fact that Crl.M.P. No.161/2023 was allowed on 11-09-2023 and the witnesses sought to be re-examined were so re-examined on 14-09-2023 and additional documents were also marked, it will be inappropriate for this Court to consider at this stage as to whether the petition under Section 311 Cr.P.C should have been allowed or not. The learned Public Prosecutor is also right in pointing out that the proceedings do not indicate that any objection had been filed by the accused to the petition filed as Crl.M.P.No.161/2023. Therefore, this Crl.M.C. will stand dismissed also considering the fact that according to the learned counsel for the petitioner, the matter is now posted for hearing. However, considering the fact that the learned counsel for the petitioner has a case that order dated 11-09-2023 does not indicate any reason as to why the petition filed by the prosecution under Section 311 Cr.P.C. was allowed by the Court, it will be open to the petitioner to raise the contention that the said petition should not have been allowed by the court during the hearing of the case. This shall only be if the petitioner has actually filed objections to Crl.M.P.No.161/202. If the petitioner has not filed any objection to Crl.M.P.No.161/2023, the petitioner shall not be allowed to raise the question that the petition filed as Crl.M.P.No.161/2023 shou