SMT. SHOBHA v. SOMASHEKAR

3. SMT. GANGAVVA W/O. BASAYYA HIREMATH, AGE. 64 YEARS, OCC. HOUSE WORK, R/O. BENAKATTI VILLAGE, TQ. DHARWAD, DIST. DHARWAD- 581103. RAKESH S HARIHAR RAKESH S HARIHAR Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD

4. SMT. VIJAYALAXMI W/O. CHANNAYYA GADDADEVARAMATH, AGE. 41 YEARS, OCC. HOUSE WORK, R/O. GULAGANJIKOPPA VILLAGE, TQ. LAXMESHWAR, DIST. GADAG- 582210. - 2 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR

5. CHANNAYYA @ CHANNABSAYYA S/O. FAKKIRAYYA GUDDAVARAMATH, AGE. 46 YEARS, OCC. AGRICULTURE, R/O. GULAGANJIKOPPA VILLAGE, TQ. LAXMESHWAR, DIST. GADAG -582210.

6. THE STATE OF KARNATAKA, REPRESENTED BY STATE PUBLIC PROSECUTOR, SPP OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH AT DHARWAD -580011, THROUGH PSI, DHARWAD WOMEN POLICE STATION. (BY SMT. GIRIJA S. HIREMATH, HCGP) …RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. (U/S. 528 OF BNSS, 2023) PRAYING TO A. QUASH THE IMPUGNED ORDER DATED 05/06/2025 ORDER MADE ON APPLICATION U/SEC. 242 OF CR.P.C AND ANOTHER APPLICATION U/SEC. 311 OF CR.P.C IN C.C NO.2840/2019 FOR THE OFFENCES PUNISHABLE U/S 498A, 504,506,323, R/W 149 OF IPC AND SECTION 3 AND 4 DOWRY PROHIBITION ACT 1961 PENDING ON THE FILE OF THE IVTH ADDITIONAL SENIOR CIVIL JUDGE AND JMFC COURT AT DHARWAD., CONSEQUENTLY, BY ALLOWING THE APPLICATIONS FILED BY THE PETITIONER VIDE ANNEXURE-D AND F RESPECTIVELY AS PRAYED THEREIN IN THE INTEREST OF JUSTICE AND EQUITY B. PASS ANY OTHER SUITABLE ORDER UNDER THE FACT AND THE CIRCUMSTANCE OF THE CASE AT HAND IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR ORAL ORDER (PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

1. Petitioner, who is the defacto complainant, is before this Court assailing the order dated 05.06.2025 passed on the application filed by the prosecution under Sections 242 and 311 of Cr.P.C. in C.C.No.2840/2019 by the Court of IV Additional Senior Civil Judge and JMFC, Dharwad registered for the offences punishable under Sections 498A, 504, 506, 323 read with Section 149 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961, with a prayer to quash the aforesaid order.

2. Heard learned counsel for the parties.

3. Learned counsel the petitioner after reiterating the grounds urged in the petition submits that if the prosecution is not permitted to produce additional documents, the case of the prosecution will be seriously prejudiced. The said documents were submitted by the defacto complainant to the investigating officer during the - 4 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR course of investigation, however they were not included as part of the charge sheet. He submits that Section 242 of Cr.P.C. provides ampful power to the Courts to take all such material produced on behalf of the prosecution at any stage. In support of his contention, he has relied on the order passed by this Court in Crl.P.No.13023/2023 disposed off on 27.03.2024.

4. Petitioner is the defacto complainant in Crime No.8/2019 registered by Dharwad Women Police Station, Dharwad for the offences punishable under Sections 498A, 504, 506, 323 read with Section 149 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. After completing investigation, charge sheet has been filed in the said case against respondent Nos.1 to 5 herein. In the said proceedings, at the stage of recording of statement of the accused under Section 313 of Cr.P.C., two separate applications under Sections 242 and 311 of Cr.P.C. filed by the prosecution were rejected by the trial - 5 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR Court vide the order impugned. Aggrieved by the same, the defacto complainant is before this Court.

5. It is not in dispute that the documents which are now sought to be produced were not part of the charge sheet. The trial in the case had commenced in the year 2021. The defacto complainant was examined before the trial Court in the month of June 2023. Thereafter, other charge sheet witnesses were examined before the trial Court and after the prosecution had closed its side of evidence, the matter was posted before the trial Court for the purpose of recording the statement of the accused under Section 313 of Cr.P.C. It is at this stage, prosecution had filed two separate applications under Sections 242 and 311 of Cr.P.C. which were rejected on

05.06.2025. Being aggrieved by the same, defacto complainant is before this Court.

6. Section 242 of Cr.P.C. reads as under: “242. Evidence for prosecution.-(1) If the accused refuses to plead or does not plead, or claims to be tried - 6 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR or the Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination of witnesses: Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses recorded during investigation by the police. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. (3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination.”

7. Section 242(2) of Cr.P.C. provides that on the application of the prosecution, the Magistrate may issue summons to any of its witnesses directing him to attend or to produce any document or other thing. Sub-section (3) of Section 242 of Cr.P.C. provides that Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. Though this provision of law empowers the Magistrate to take all such material which is not collected during the course of investigation, the Courts are required to be cautious while granting permission and - 7 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR should ensure that it will not prejudice the defence of the accused. In the case on hand, trial has commenced in the year 2021 and at the stage of recording the statement of the material witnesses, the present applications are filed.

8. Learned Magistrate has taken note of the fact that applications do not disclose what are the documents the prosecution is intending to produce. In the absence of prosecution furnishing necessary particulars of documents which it intends to produce, the Courts cannot be expected to pass a sweeping order under Section 242 of Cr.P.C. permitting the prosecution to produce additional document which is not part of the charge sheet, more so, when the charge sheet witnesses are completely examined before the Court. If such applications are allowed, the defence of the accused may be prejudiced and opportunity to fill up the lacuna in the case would be available to the prosecution.

9. The order passed in Crl.P.No.13023 of 2023, therefore cannot be made applicable to the present case - 8 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR since the application filed on behalf of the prosecution lacks necessary particulars of the documents and such application is filed at a very belated stage of proceedings.

10. The Hon’ble Supreme Court in the case of Md.Ghouseuddin Vs.Syed Riazul Hussain and Another reported in 2021 SCC OnLine SC 3315 in paragraph 6 has observed as follows: “6. Having heard learned counsel for the parties and going through the record, we are of the considered opinion that even if the question as to the jurisdiction of the High Court need not be over- emphasized, the fact remains that the Trial Court had given sound and tangible reasons for rejecting the application for summoning of the document(s) – moved at such a belated stage and without any justification for such relief. The High Court has completely glossed over this aspect in the impugned judgment. The right to summon document(s), indeed, is available but that has to be exercised when the trial is in progress and not when the trial is completed, including after the statement of accused under Section 313 of Criminal Procedure Code had been recorded. The efficacy of the trial cannot be whittled down by such belated application.”

11. Under the circumstances, I am of the opinion that the trial Court was fully justified in rejecting the - 9 - NC: 2025:KHC-D:9993 CRL.P No. 102915 of 2025 HC-KAR application filed by the prosecution under Section 242 of Cr.P.C. with a prayer to produce documents which were not part of the charge sheet material. Relief sought for in the application filed under Section 311 of Cr.P.C. is consequential to the order passed under Section 242 of Cr.P.C. Since the learned Magistrate has rejected the application filed by the prosecution under Section 242 of Cr.P.C., I find no irregularity and illegality in he rejecting the application filed under Section 311 of Cr.P.C., in which consequential relief is prayed. The question of recalling PW1 in exercise of its power under Section 311 of Cr.P.C. would arise only in the event the application filed under Section 242 of Cr.P.C. was allowed. Under circumstances, I do not find any good ground to entertain this petition. Accordingly, the petition is dismissed. Sd/- (S.VISHWAJITH SHETTY) JUDGE KGK List No.: 1 Sl No.: 45