Maintainability of application not forwarded by app for state crpc 311
Rakesh Sharma
(Querist) 26 October 2015
This query is : Resolved
Application Under 311 forwarded by complainant counsel and duly is not forwarded by APP for state.
Does any application maintainable in 498A vs State if same is not forwarded by APP for state
SAINATH DEVALLA
(Expert) 27 October 2015
Come out with facts about the case briefly
Rakesh Sharma
(Querist) 27 October 2015
facts as below
FIR in 2012 Charge sheet in same year
Out of total 12 PWs 11 are done remaining one was suppose to be give up by APP. On Last day when 11th PW's cross was done complainant counsel moved Application under crpc 311 to call more new 6 PWs and same was not supported by APP for state.
Order of the particular day says something like """" At this stage, Ld. Counsel for the complainant moved an application under
Section 311 Cr.P.C. The application is not duly forwarded by Ld. APP for the
State. Copy given. Now to come up on >>>> for filing the reply as well as
consideration over the same. The case is also adjourned for remaining PWs at own
responsibility. ""
My Question is as Application is not duly forwarded by APP for state is it maintainable can we argue taking this as ground?
SAINATH DEVALLA
(Expert) 27 October 2015
Though not forwarded by the APP the application u/s 311 crpc once accepted by the court is maintainable and according to section 309 crpc the new witnesses can be examined,if they are found to relevant to the case.
Dr J C Vashista
(Expert) 27 October 2015
Since the case u/s 498A IPC is a State case and it is mandatory that the complainant shall move through APP who can be assisted by "some" counsel for the complainant; hence it is necessary that the applicant/complainant has to move the application u/s 311 Cr.PC through APP only. In defence of the accused you must argue on this point when the application is being considered.
Besides this, copy of list of witnesses and documents is a part of charge sheet filed by the State. There is no further inquiry and even than why there are new witnesses? What does the complainant want to prove by new witnesses?
Rakesh Sharma
(Querist) 27 October 2015
Thanks Dr J C Vashista, Do we have any SC or HC Judgment which can help or can presented during argument on this ground.
SAINATH DEVALLA
(Expert) 27 October 2015
Court can recall any witness already deposed or new witnessess even if once that power u/s.311 CrPC, has been exercised: Supreme Court.
K.S.Srinivas
(Expert) 28 October 2015
I agree with Dr J C Vashista.
Rakesh Sharma
(Querist) 29 October 2015
Do we have any SC or HC judgment which we can refer while arguing on this point ?
T. Kalaiselvan, Advocate
(Expert) 01 November 2015
I agree with the views of expert Dr. Vashista on the subject issue. First of all where is the question of complainant's counsel. In this state prosecuted case, the complainant will be the state/police and its counsel is APP, the defacto complainant will be behind the screen and will come in fron only during the examination of witness. Therefore there is no locus standi for the defacto complainant's counsel to move any application on her behalf once the APP is available to prosecute the case.
If in the opinion of APP the additional witnesses is not required to be produced, the court may not entertain any such applications by any individual.
Why are you insisting on HC or supreme court judgement for this, the citations are not supplied here, you may have to do your own home work for getting them.
