SANDEEP MEHTA,J. - (1.) By way of this petition under section 482 CrPC, 1973 the petitioners accused have approached this court for challenging the order 22.11.2013 passed by learned Sessions Judge, Chittorgarh in revision, whereby the revisional court dismissed the revision preferred by the petitioners against the order dated 31.10.2013 passed by learned Civil Judge (Junior Division), Chittorgarh in Criminal Case No. 428/2005. The petitioners herein are facing trial in the court below for the offences under Sections 494 and 494/109 IPC. Specific defence of the petitioners was that Seeta, petitioner No. 3, is the wife of one Jagdish and that she never married the petitioner No. 1 Rakesh and thus, no offence of bigamy was committed. The first prosecution witness being respondent complainant Nirmala was examined by the trial court on 28.04.2012. On that very day, specific suggestion was given by the defence to this witness in cross-examination that Seeta's husband is Jagdish S/o Kanadas. Similar suggestion was given to the witnesses Mangilal (P.W.2) examined on 02.06.2012 and Narayan Lal (P.W.4) examined on 01.12.2012. The accused Rakesh, who is deaf and dumb, upon being examined under section 313 CrPC, 1973 categorically denied that he had married Seeta. Three witnesses were examined in defence, wherein also a specific plea was taken that Seeta continued to be the legally wedded wife of Jagdish. After the defence evidence had been completed, the complainant moved an application under section 311 CrPC, 1973 wherein she claimed that the defence taken by the accused in the statement under section 313 CrPC, 1973 that Seeta was wife of Jagdish was totally false and she desired to examine the said Jagdish by way of rebuttal evidence so as to prove that he had customarily divorced Seeta 20 years ago. The said application preferred by the complainant on 19.10.2013 was allowed by the trial court by the order dated 31.10.2013, which was affirmed by the revisional court on 22.11.2013. The instant misc. petition has been preferred for challenging these two orders.
(2.) Mr. Manish Pitaliya, learned counsel representing the petitioners accused, vehemently urged that the direction given by the trial court while accepting the application preferred by the respondent under section 311 CrPC, 1973 to summon and examine Jagdish as a prosecution witness virtually amounts to an act of subterfuging the defence of the accused. He contends that by no stretch of imagination can the prosecution be clothed with the right to lead evidence in rebuttal of the defence taken by the accused because such a course of action would virtually defeat the right of fair trial provided to every accused under the Constitution of India. He, thus, urges that the impugned orders are nothing short of gross abuse of process of court and should be quashed and set aside.
(3.) Per contra, Mr. Abhinav Jain, learned counsel representing the respondent complainant, relied upon the decision of Hon'ble Supreme Court in the case of Rajaram Prasad Yadav v. State of Bihar and Anr. reported in AIR 2013 SC 3081 and contended that the trial court as well as the revisional court have categorically held that recording of evidence of Jagdish is essential to arrive at the truth and for just and fair decision of the case. Thus, as per him, this court should not be persuaded to interfere in the discretion rightly exercised by the court below and implored the court to dismiss the instant misc. petition.;