BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.09.2019 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Crl.O.P.(MD)No.6208 of 2017 and CRLMP(MD)Nos.4185 of 2017 & 664 of 2018

1.Jeyaseelan 2.Wellington 3.Prabhakar

4.Gajith @ Darvin Kajith .. Petitioners / Respondents /

Accused Nos. 1 to 4 Vs.

The State Represented by, The Inspector of Police, Uvari Police Station, Tirunelveli District.

(Crime No.82/2015) .. Respondent / Petitioner /

Complainant PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to call for the records and set aside the order passed by the learned IV- Additional Sessions Judge, Tirunelveli, dated 28.03.2017 in Crl.M.P. 592/2016 in S.C.No.256 of 2016 and allow this Criminal Original Petition.

For Petitioners : Mr.S.Balamurugan For respondent : Mr.M.Chandrasekaran Additional Public Prosecutor

ORDER

This petition has been filed challenging the order passed by the Court below allowing the application filed under Section 311 of Cr.P.C., by the prosecution to examine a witness viz., the Sub-Inspector of Police, Uvari Police Station and to mark a complaint that was given to him by P.W.1.

2. The petitioners are facing trial before the Court below for an offence under Sections 294 (b), 342, 302 and 506 (ii) IPC., r/w 34 IPC. The prosecution had examined P.W.1 to P.W.20 and none of the witnesses were examined by the petitioners. At this stage, the prosecution had filed an application under Section 311 of Cr.P.C., to examine a new witness, not shown as a witness in the final report, in order to mark a complaint given to him by P.W.1 and this complaint also does not form part of the final report filed by the prosecution.

3. This application was opposed by the petitioners on the ground that P.W.1 has not spoken about giving any complaint against the accused persons, even in the statement given to the Investigating Officer under Section 161 of Cr.P.C. For the first time, when P.W.1 was in the witness box, she made a statement to that effect. The prosecution cannot introduce any new witness or file any additional document without the same being the part of the final report and the prosecution has to necessarily seek for further investigation and file a further report, wherein, the statement of the additional witness and the additional document can be brought before the Court and this will give an opportunity to the accused persons to exactly know the materials that are available against them. Without doing so, the attempt made by the prosecution is only to fill up lacunae and the accused persons will be put to irreparable loss and hardship, if the 311 application is allowed.

4. The Court below after considering the facts and circumstances of the case and also the reasons assigned by the prosecution for examination of the additional witness and marking of additional document, thought it fit to allow the application.

5. The learned counsel for the petitioners submitted that the accused persons have been exposed to a new fact, which was neither available in the complaint nor in the final report filed by the respondent police. Therefore, to that extent, the accused persons are prejudiced by the order of the Court below allowing the application filed by prosecution under Section 311 of Cr.P.C.

6. The learned counsel for the petitioners further placed reliance upon Section 173 (5) of Cr.P.C and submitted that it is the duty of the Investigating Officer to file along with the report all the documents that are relied upon by the prosecution and all the statements recorded under Section 161 of Cr.P.C, whom the prosecution proposes to examine as a witness. In this Case, the additional witness was not shown as a prosecution witness in the final report and the document that is relied upon was not filed along with the report. Therefore, the learned counsel submitted that the prosecution cannot be allowed to bring in additional evidence in an indirect manner.

7. The learned Additional Public Prosecutor appearing on behalf