CHEMO STELL LTD Vs. STATE OF A P

JUDGEMENT

(1.) Private complaint filed by the third respondent was referred to police for investigation under Section 156(3) Cr.P.C. Police, after investigation, filed a charge sheet against the petitioners for various offences. After the prosecution closed its evidence, and when the case was posted for examination of the accused under Section 313 Cr.P.C., prosecution filed Crl.M.P.No. 8082 of 2002, under Section 311 Cr.P.C., seeking permission of the Court to examine the husband of the de facto-complainant as additional witness on its behalf. Petitioners opposed the said application. The trial Court by the order impugned in this petition, allowed the said petition. Hence, this petition.

(2.) The main contention of the learned counsel for the petitioners is that since Section 161 Cr.P.C. statement of the witness, intended to be examined as additional witness, is not recorded by the police, petitioners, who are the accused, would be put to hardship and inconvenience as they would not be having an opportunity to cross- examine the witness with reference to his earlier statement and since there is not even a whisper by the de facto complainant (P.W. 1) about her being acquainted with the petitioners through her husband, it is clear that the petition seeking permission to examine the husband of the de facto- complainant is filed only with a view to fill up the lacunae in the case of the prosecution, and since examination of the husband of the defacto-complainant as a witness at this stage would cause great prejudice and hardship to the petitioners, the learned Magistrate ought not to have granted permission to the prosecution to examine additional witness on their behalf. He placed strong reliance on Mohanlal Shamji Soni v. Union of India and Laveti Kamala v. State of Andhra Pradesh in support of the contentions raised by him.

(3.) The contention of the learned counsel for the third respondent (de facto- complainant) is that since the evidence of P.W. 1 (de facto-complainant) shows that she came to know the petitioners (accused) through her husband and that she entered into the transaction (which is the subject matter of the case) with them through her husband, it is clear that the husband of the de facto-complainant is aware of the facts of the case but the Investigating Officer did not record his statement under Section 161 Cr.P.C. and cite him as a witness, and so de facto-complainant cannot be put to prejudice for the laches on the part of the investigating officer. He also relied on Mohanlal Shamji Soni's case and contends that since the learned Magistrate gave cogent reasons for his conclusion that the petition has to be allowed, there are no grounds to interfere with the order impugned. Heard the learned Public Prosecutor.