Sunil Gupta Vs Shakuntala Vishwakarma

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2025:CGHC:2233

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 128 of 2025

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1 - Sunil Gupta S/o Rameshwar Das Aged About 47 Years R/o Karumhua, Village Godhikala, Tahsil And Police Station Patthalgaon, District- Jashpur, Chhattisgarh.

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... Petitioner(s)

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versus

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1 - Shakuntala Vishwakarma W/o Sanjay Sarkar Aged About 36 Years R/o Mahuaapara, Fundudihari, Ambikapur, District- Sarguja, Chhattisgarh.

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... Respondent(s)

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For Petitioner(s) : Mr. Ishwar Jaiswal, Advocate For Respondent(s) :

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Hon’ble Shri Justice Arvind Kumar Verma, Judge

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Order on Board

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14/01/2025

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The present petition is filed under Section 528 of BNSS, 2023 against the order dated 09.09.2024 passed by the Judicial Magistrate First Class, Patthalgaon, District- Jashpur rejecting the

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petitioner’s application for further cross examination of the complainant and the subsequent dismissal of the Criminal Revision Petition on 19.12.2024 by the Additional Sessions Judge, Patthalgaon.

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Brief facts of the case are that the petitioner is the non- applicant in miscellaneous criminal case no. 04/2022 registered under section 12 of the Protection of Women from Domestic Violence Act, 2005, filed by the respondent No. 2, Shakuntala Vishwakarma, before the Judicial Magistrate First Class, Patthalgaon, District-Jashpur, Chhattisgarh. During the trial proceedings, the complainant/respondent was examined in chief and cross-examination of complainant was held 11.06.2024. However, due to the absence of the petitioner's counsel, who was unavailable due to unavoidable circumstances, several crucial and material points were not addressed during the cross-examination. The petitioner, being aggrieved by the lack of opportunity to effectively address key issues, filed an application (IA No. 1) on 27.07.2024 before the trial court, seeking to recall the complainant. The application highlighted the material questions that required clarification to establish the petitioner's defence, including the examination of contradictions in the complainant's testimony and prior statements, questioning regarding material documents and evidence not addressed during the initial crossexamination, clarifications on facts critical to disproving the allegations raised by the complainant. The learned trial court, vide

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its order dated 09.09.2024, rejected the petitioner's application to recall the complainant. The rejection was based on procedural grounds without considering the substantive merits of the application or the prejudice caused to the petitioner. Being aggrieved by the said order, the petitioner filed a Criminal Revision Petition before the learned Additional Sessions Court, Patthalgaon, Distt - Jashpur. However, the revision petition was dismissed on 19.12.2024, citing the bar on revision petitions under Section 438(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, without appreciating the gravity of the issues raised by the petitioner.

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Learned counsel for the petitioner contended that impugned orders have caused serious prejudice to the petitioner, as they have deprived him of the opportunity to present a comprehensive defense. The complainant's testimony remains unchallenged on material points, which directly affects the petitioner's right to a fair trial. He further contended that the learned courts below have failed to exercise their judicial discretion in granting the petitioner a fair opportunity to cross-examine the complainant on vital issues. The denial of this opportunity amounts to a violation of the principles of natural justice and the petitioner's fundamental right to a fair trial under Article 21 of the Constitution of India.

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I have heard learned counsel for the petitioner and perused the record with utmost circumspection.

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Perusal of record reveals that the petitioner is the non- applicant

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in miscellaneous criminal case no. 04/2022 registered under section 12 of the Protection of Women from Domestic Violence Act, 2005, filed by the respondent before the Judicial Magistrate First Class, Patthalgaon, District-Jashpur, Chhattisgarh. During the trial proceedings, the complainant/respondent was examined in chief and cross-examination of complainant was held 11.06.2024. However, due to the absence of the petitioner's counsel, the respondent was not cross-examined materially. The petitioner then filed an application (IA No. 1) on 27.07.2024 before the trial court, seeking to recall the complainant. The learned trial court, vide its order dated 09.09.2024, rejected the petitioner's application to recall the complainant. The rejection was based on procedural grounds without considering the substantive merits of the application or the prejudice caused to the petitioner. Being aggrieved by the said order, the petitioner filed a Criminal Revision Petition before the learned Additional Sessions Court, Patthalgaon, Distt - Jashpur. However, the revision petition was dismissed on 19.12.2024, citing the bar on revision petitions under Section 438(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

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Learned Trial Court has dismissed the application filed by the petition observing that during the trial of the case, on 11/06/2024, the respondent herein Shakuntala Gupta had appeared in the court for evidence, after recording the examination-in-chief, the petitioner’s advocate was given full opportunity to cross-examine the witness. Thus, it shows that the respondent herein has

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presented complete evidence on all the important and material points of the case. In the application submitted by the petitioner herein, it has been stated that the respondent herein cannot be cross-examined with respect to some documents, but in respect of which documents the respondent herein could not be crossexamined, no clear statement has been made by the petitioner herein in this regard and apart from this, no statement has been made by the petitioner herein with regard to the questions that could not be asked to the respondent herein. Since the complete evidence of the respondent herein has been recorded on all the important and material points of the case, it does not seem justified to call the respondent herein for evidence again and therefore rejected the application.

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This Court is of the considered opinion that the Trial Court has not committed any irregularity or perversity in rejecting the aforesaid application as the respondent herein has been cross-examined at length.

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With the aforesaid observation, the present petition is hereby dismissed as there is no cogent ground to allow the same.

Sd/-

(Arvind Kumar Verma)

JUDGE

Madhurima

Sunil Gupta v. Shakuntala Vishwakarma

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Sunil Gupta v. Shakuntala Vishwakarma

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