IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.06.2017 CORAM THE HONOURABLE MR. JUSTICE R.MAHADEVAN Crl.O.P.No.11243 of 2017 Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in Crl.MP.No.741 of 2017 in SC No.71 of 2010 and set aside the order dated 10.04.2017 passed by the learned District and Sessions Judge, Nagapattinam.
For Petitioners : Mr.A.S.Baalaji For Respondent : Mr.C.Emalias, APP ORDER The present criminal original petition has been filed to call for the records relating to the order dated 10.04.2017 passed by the learned District and Sessions Judge, Nagapattinam in Crl.MP.No.741 of 2017 in SC No.71 of 2010 and set aside the same.
2. It is the case of the petitioners that originally, there are totally five accused in SC No.71/2010 and they are charged for the offences punishable under Sections 147, 148, 294(b), 342 and 302 IPC. After issuance of summons, trial has commenced on 21.04.2014, during which, P.W.1 to P.W.11 were examined and Exs.P1 and P12 were marked, apart from M.O.1 to M.O.7 material objects and the prosecution side evidence was closed. At that time, Section 231(2)Cr.P.C petition was filed for deferring the cross examination and the same was allowed. On 26.08.2014, the case was posted for questioning under Section 313(1)(b) Cr.P.C, but it could not be done and the case was adjourned to 22.09.2014, on which date, A2 was absent and non-bailable warrant was issued against him. As the respondent police was unable to secure A2, they filed a petition to split up the case as against A2. Accordingly, by order dated 14.03.2017 passed by the learned District and Sessions Judge, Nagapattinam, the case against A2, was split up and was renumbered as SC No.10/2017. Thereafter, on 21.03.2017, the case was posted for proceeding under Section 313(1)(b) Cr.P.C in respect of the remaining accused viz., A1, A3 to A5 i.e., petitioners herein and was completed. While so, the petitioners filed CMP.No.741 of 2017 under Section 311 Cr.P.C to recall P.W.1 and P.W.2 for the purpose of cross examination. However, by order dated 10.04.2017, the said petition was dismissed. Hence, this petition.
3. Learned counsel for the petitioners submitted that in order to substantiate the case of the petitioners, it is but necessary to recall P.W.1 and P.W.2 for the purpose of cross examination. However, without considering the plea of the petitioners, the trial court has dismissed their Section 311 Cr.P.C. Petition. Learned counsel further submitted that if the petitioners are not permitted to cross examine those witnesses, they would be put to great prejudice and hardship.
4. Per contra, learned Additional Public Prosecutor taking notice for the respondent submitted that with an intention to drag on the proceedings, the petitioners have approached the trial court with a request to cross examine the witnesses belatedly. Therefore, the trial court has rightly dismissed Section 311 Cr.P.C petition filed by the petitioners, in the light of the dictum laid down by the Hon'ble Supreme Court in the decision reported in (2015) 1 MLJ (Crl) 288 (SC) (Vinod Kumar v. State of Punjab).
5. Heard both sides and perused the records.
6. According to the petitioners, the case of the prosecution is solely rested upon the evidence of P.W.1 and P.W.2, as such, they have to cross examine those witnesses. Admittedly, they were not cross examined on the side of the petitioners/accused. It is true that there was a delay of two and half a years and there were 25 hearings in between the passage of time. The only ground that was taken before the court below and equally here also is that on the particular date, the advocate appearing for the petitioners had engaged in other case in another court, as such, the witnesses could not be cross examined by the side of the petitioners. This Court feels that the reason adduced by the petitioner is not convincing to excuse the attitude of the petitioners. At the same time, this Court has to consider that interest of justice should not fail. In the circumstances, this Court is of the considered opinion that an opportunity should be given to the petitioners/accused to cross examine those witnesses, in order to enable the trial court to arrive at a correct decision in the matter. If the witnesses are not cross examined by the petitioners/accused side, the only possible would be, arriving at a conclusion on the evidence recorded in the chief examination, which could cause injustice to the petitioners/accused. Therefore, this Court is of the view that the witnesses P.W.1 and P.W.2 have to be recalled for the purpose of cross examination by the petitioners' side.
7. Accordingly, the order dated 10.04.2017 passed by the learned District and Sessions Judge, Nagapattinam in Crl.MP.No.741 of 2017 in SC No.71 of 2010 is set aside. The petitioners are directed to appear before the trial court on 03.07.2017, on which date, necessary cross examination be done by the petitioners' side. It is made clear that no further adjournment be granted and no section 311 Cr.P.C petition be entertained by the trial court. The petitioners shall ensure the presence of the witnesses by issuing due notice well in advance.
8. This Criminal Original Petition is disposed of in the above terms.
22.06.2017 Index:Yes/No rk NOTE: ISSUE ON 27.06.2017 To
1. The District and Sessions Judge, Nagapattinam.
2. The Inspector of Police Kilvelur Police Station, Kilvelur, Nagapattinam District.
3. The Public Prosecutor, High Court, Madras – 104.
R.MAHADEVAN, J.
rk Crl.O.P.No.11243 of 2017 DATED: 22.06.2017 http://www.judis.nic.in