The power under CrPC Section 311 can be exercised for justice, allowing additional evidence to be gathered when parties introduce new arguments affecting the validity of marriage in prosecution under IPC 498A.

ORDER

This Crl.M.C has been filed challenging the common order in Crl.M.P. Nos.6809 and 6810 of 2023 in C.C. No.452/2011 on the file of the Judicial First Class Magistrate Court-I, Thrissur. The Petitioner faces prosecution for having committed an offence under Section 498A of the Indian Penal Code in C.C.

No.452/2011.

2. At the time of final hearing of C.C. No.452/2011, a contention was taken by the learned counsel appearing for the petitioner that there was no valid marriage between the petitioner and the de facto complainant and therefore a prosecution under Section 498A of the Indian Penal Code will not lie.

3. The facts of the case show that the petitioner was a Hindu and the de facto complainant was a Christian by birth. While the petitioner contends that, going by the First Information Statement of the de facto complainant, a marriage was solemnized, following Hindu rituals and also in a church, both the marriages are void as there was no solemnization of marriage in terms of the provisions contained in the Special Marriage Act .

4. The prosecution filed Crl.M.P. No.6809/2023 to call for the baptism certificate of the petitioner from the Vicar of Coimbatore CSI All Soul’s Church and Crl.M.P. No.6810/2023 was filed to recall PW1 (de facto complainant) to prove that the petitioner had converted into Christianity just before the solemnization of the marriage at the church.

5. According to the learned counsel appearing for the petitioner, the order of the trial court, allowing of the applications filed by the prosecution is illegal and unsustainable in law. It is submitted that the prosecution cannot be permitted to fill up lacuna in the prosecution case by summoning documents at the fag end of the trial. Learned counsel also refers to the deposition of the de facto complainant, where, according to the learned counsel, she has stated that the parties belonged to different religions at the time of their marriage in the church. It is submitted that, in such circumstances, the prosecution should not be permitted to bring in evidence to fill up any lacuna in the prosecution case and the case must be allowed to proceed on the basis of the evidence already before the court. Learned counsel has placed reliance on two judgments of this Court namely,Vijyadas K.V. Vs. State of Kerala [ 2017(4) KHC 91 ] and Manoj G Vs. State of Kerala [ 2019 (3) KHC 906 ].

6. Learned Public Prosecutor and the learned counsel appearing for the de facto complainant would vehemently oppose the grant of relief to the petitioner. It is submitted that, in the peculiar facts and circumstances of the case and in the interest of justice, it is only appropriate that the baptism certificate of the petitioner be summoned from the church in question and PW1 be permitted to be recalled for further examination in the light of the contention now taken by the learned counsel for the accused before the trial court that there was no valid marriage authorizing prosecution under Section

498A of the Indian Penal Code .

7. Learned counsel appearing for the de facto complainant would submit that in none of the earlier proceedings between the parties, petitioner has taken a contention that there was no valid marriage between the petitioner and the de facto complainant. It is submitted that there were proceedings for divorce as also proceedings under the Guardian and Wards Act and no contention was ever taken by the petitioner that there was no valid marriage. It is submitted that going by the judgment of the Supreme Court in Varsha Garg V. State of Madhya Pradesh and Ors. [AIR 2022 SC 3707], it is settled that the power of the court under Section 311 Cr.P.C is not constrained by the closure of evidence. It is submitted that the judgment holds that broad powers under Section 311 Cr.P.C are to be governed by the requirements of the justice and the power must be exercised wherever the court finds that any evidence is essential for the just decision of the case and that the court