Biju Menon v. State of Kerala and Priya (CRL.MC No. 7208 of 2023)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 ``` ## **`CRL.MC NO. 7208 OF 2023`** ``` CRIME NO.48/2010 OF Town East Police Station, Thrissur AGAINST THE ORDER/JUDGMENT CRMP 6809/2023 OF JUDICIAL MAGISTRATE ``` ``` OF FIRST CLASS -I,THRISSUR ``` ## **`PETITIONER/ACCUSED:`** ``` BIJU MENON, AGED 46 YEARS S/O.GOPINATH, AYILYAM HOUSE, WEST YAKKARA, MURIKKAV, PALAKKAD, PIN - 678701 ``` ``` BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 2PRIYA AGED 27 YEARS W\O. BIJU MENON, SKYLINE WILLOW HEIGHTS, III G, B BLOCK, MUNDUPALAM, THRISSUR DISTRICT (IS IMPLEADED AS PER ORDER DATED 13/09/23 OM CRL.M.C. 7208/23) BY ADV MARY BENJEMIN ``` ``` SRI NOUSHAD K.A. (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 7208 OF 2023 2 ``` ## **`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 ``` CRL.MC NO. 7208 OF 2023 3 ``` ## 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 ``` CRL.MC NO. 7208 OF 2023 4 ``` 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 ``` CRL.MC NO. 7208 OF 2023 5 ``` 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 is not a hapless bystander in the derailment of justice. It is submitted that in **Satbir Singh V. State of Haryana and Ors. [MANU/SC/ 0954/ 2023]** , also it was held as follows:- ‘’9. Section 311 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) has engaged this Court’s attention before. We will advert to a few decisions of recent vintage. While overturning an order of the High Court allowing an application for recall of a witness, which was rejected by the trial Court, this Court held as under, in Ratanlal v Prahlad Jat, (2017) 9 SCC 340: ‘ 17.In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising its discretionary authority at any stage of inquiry, trial or other proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person already examined who are expected to be able to throw light upon the matter in dispute. The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is to be ``` CRL.MC NO. 7208 OF 2023 6 ``` exercised only for strong and valid reasons and it should be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the order. 18. In Vijay Kumar v.State of U.P.[Vijay Kumar v.State of U.P., (2011) 8 SCC 136 : (2011) 3 SCC (Cri) 371 : (2012) 1 SCC (L&S) 240], this Court while explaining scope and ambit of Section 311 has held as under: (SCC p. 141, para 17) “17.Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of [CrPC] and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.” 19.In Zahira Habibullah Sheikh (5) v. State of Gujarat [Zahira Habibullah Sheikh (5) v.State of Gujarat, (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , this Court has considered the concept underlying under Section 311 as under: (SCC p. 392, para 27) “27.The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” 20.In State (NCT of Delhi) v. Shiv Kumar Yadav [State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 : (2016) 1 SCC (Cri) 510], it was held thus: (SCC pp. 404g-405a) “… Certainly, recall could be permitted if essential for the just decision, but not on such consideration as has ``` CRL.MC NO. 7208 OF 2023 7 ``` been adopted in the present case. Mere observation that recall was necessary “for ensuring fair trial” is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, there is no ground to justify the recall of witnesses already examined.” 21. The delay in filing the application is one of the important factors which has to be explained in the application. In Umar Mohammad v. State of Rajasthan [Umar Mohammad v.State of Rajasthan, (2007) 14 SCC 711 : (2009) 3 SCC (Cri) 244] , this Court has held as under: (SCC p. 719, para 38) “38. Before parting, however, we may notice that a contention has been raised by the learned counsel for the appellant that PW 1 who was examined in Court on 5-7-1994 purported to have filed an application on 1-5-1995 stating that five accused persons named therein were innocent. An application filed by him purported to be under Section 311 of the Code of Criminal Procedure was rejected by the learned trial Judge by order dated 13-5-1995. A revision petition was filed thereagainst and the High Court also rejected the said contention. It is not a case where stricto sensu the provisions of Section 311 of the Code of Criminal Procedure could have been invoked. The very fact that such an application was got filed by PW 1 nine months after his deposition is itself a pointer to the fact that he had been won over. It is absurd to contend that he, after a period of four years and that too after his examinationin-chief and crossexamination was complete, would file an application on his own will and volition. The said application was, therefore, rightly dismissed.”’ 8. Having heard the learned counsel appearing for the petitioner and the learned Public Prosecutor and the learned counsel appearing for the additional 2[nd] respondent, I am of the view that the petitioner is not entitled to any relief. The ``` CRL.MC NO. 7208 OF 2023 8 ``` petitions filed by the prosecution were to prove that there was a valid marriage between the petitioner and the de facto complainant. In the peculiar facts of this case, the question as to whether there was a valid marriage between the petitioner and the de facto complainant had never been raised in earlier proceedings between the petitioner and the de facto complainant . Secondly, there was no occasion for the de facto complainant to give evidence to the effect that there was a valid marriage between the petitioner and the de facto complainant. When the petitioner had taken up a contention that there was no valid marriage, it was necessary for the prosecution to summon the document showing that the petitioner had converted to Christianity just before his marriage with the de facto complainant and also to recall the de facto complainant for further examination to prove that there was a baptism ceremony conducted prior to the marriage between the petitioner and the de facto complainant in order to establish that there was a valid marriage between the petitioner and the de facto complainant. It is true that, in **Vijyadas (Supra)** as also in **Manoj (supra)** , this Court has taken the view that a petition under Section 311 Cr.P.C should not be allowed in order to permit the prosecution to fill up lacuna or to cover up the defect or to rectify any ``` CRL.MC NO. 7208 OF 2023 9 ``` mistake in the evidence recorded on the side of the prosecution. In the facts of this case, it cannot be said that the prosecution was trying to cover up any lacuna or to rectify any mistake in the evidence recorded on the side of the prosecution. As held in **Satbir Singh (supra)** , the petitioner cannot be prejudiced by the grant of reliefs sought for in Crl.M.P. Nos.6809 and 6810 of 2023. After further examination of PW1, if the petitioner wishes to tender any evidence in defence, it will always open to him to tender such evidence and therefore, no prejudice will be caused to the petitioner by the summoning of the document and by the order directing the recall of PW1 for further examination. The Crl.M.C stands dismissed. ``` Sd/- GOPINATH P. JUDGE ``` ajt ``` CRL.MC NO. 7208 OF 2023 10 ``` ## **`APPENDIX OF CRL.MC 7208/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure 1`|`TRUE COPY OF THE F.I STATEMENT IN CRIME.NO.`| ||`48/2010 OF TRICHUR EAST POLICE STATION,`| ||`THRISSUR DATED 15/1/2010`| |`Annexure 2`|`TRUE COPY OF THE DEPOSITION OF PW1/DEFACTO`| ||`COMPLAINANT IN C.C.NO.452/2011 OF THE COURT`| ||`OF JUDICIAL FIRST CLASS MAGISTRATE-I,`| ||`THRISSUR`| |`Annexure 3`|`TRUE COPY OF THE CRL.M.P.NO.6809/2023 IN`| ||`C.C.NO.452/2011 OF THE COURT OF JUDICIAL`| ||`FIRST CLASS MAGISTRATE-I, THRISSUR DATED`| ||`01.08.2023`| |`Annexure 4`|`TRUE COPY OF THE CRL.M.P.NO.6810/2023 IN`| ||`C.C.NO.452/2011 OF THE COURT OF JUDICIAL`| ||`FIRST CLASS MAGISTRATE-I, THRISSUR DATED`| ||`01.08.2023`| |`Annexure 5`|`TRUE COPY OF THE COUNTER CRL.M.P.NO.6810/2023`| ||`IN C.C.NO.452/2011 OF THE COURT OF JUDICIAL`| ||`FIRST CLASS MAGISTRATE-I, THRISSUR DATED`| ||`05.08.2023`| |`Annexure 6`|`CERTIFIED COPY OF THE COMMON ORDER IN`| ||`CRL.M.P.NO.6809 AND 6810 OF 2023 IN`| ||`C.C.NO.452/2011 OF THE COURT OF JUDICIAL`| ||`FIRST CLASS MAGISTRATE-I, THRISSUR DATED`| ||`08.08.2023`| |`RESPONDENT ANNEXURES`|| |`Annexure R2(A)`|`True copy of the Extract from the Register of`| ||`Baptism kept in the CSI All Souls'Church`| ||`Coimbtore`| |`Annexure R2(C)`|`True copy of the petition for divorce by`| ||`mutual consent filed by both the petitioner`| ||`and the 2nd respondent.`| |`Annexure R2(E)`|`True copy of the order dated 18.11.2010 in`| ||`G.O.P. 612 of 2010 of the Family Court,`| ||`Trissur.`| |`Annexure R2(D)`|`True copy of the order dated 10.03.2015, of`| ||`the Family Court, Coimbatore in D.O.P. No.`| ||`752 /2014`| |`Annexure R2(B)`|`True copy the marriage certificate dated`| ||`31.01.2006, issued by the Registrar General`| ||`of births, deaths and marriage, Chennai.`|