Madras High Court
Indira Kumari vs State Represented By on 31 August, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.08.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.O.P.No.14096 of 2021
and Crl.M.P.No.7717 of 2021
Indira Kumari .. Petitioner/Accused - 1
Vs.
1.State represented by
The Deputy Superintendent of Police,
CBCID, Metro Wing,
Chennai. .. 1st Respondent / Complainant
2. Dr.P.Shanmugam .. 2nd Respondent / Accused - 3
3. A. Babu .. 3rd Respondent / Accused - 4
4. R. Venkatakrishnan @ Venkat .. 4th Respondent / Accused - 5
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., to
withdraw the case pending in C.C.No.12 of 2019 on the file of the
Additional Special Court for Trial of Criminal Cases related to Elected
Members of Parliament and Members of Legislative Assembly of Tamil
Nadu, Chennai and the same may be transferred to any other Special Court
for Trial of Criminal Cases related to Elected Members of Parliament and
members of Legislative Assembly of Tamil Nadu in nearer district.
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2
For Petitioner .. Mr.L.V.Rohith
For Respondents .. Mr.E.Raj Thilak
Govt. Advocate (Criminal Side)
ORDER
Even before I address the issue now raised by the learned counsel for
the petitioner / 1st accused in C.C.No.12 of 2019 now pending on the file of
the Additional Special Court for Trial of Criminal Cases related to Elected
Members of Parliament and Members of Legislative Assembly of Tamil
Nadu, Chennai, one aspect has to be stated.
2.On 13.08.2021, the present petition was moved before Hon'ble
Mr.Justice M.Nirmalkumar who was holding the portfolio as Special Judge
in the High Court pertaining to the matters relating to Elected Members of
Parliament and Members of Legislative Assembly of Tamil Nadu. The
learned Single Judge recused from hearing the matter. On that particular
date, the alternative Judge to Mr.Justice M.Nirmalkumar was Mr.Justice
P.Velmurugan and therefore the matter was posted before Mr.Justice
P.Velmurugan on 23.08.2021.
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3.The portfolio had however been changed by the Hon'ble Chief
Justice and this Court was placed as the alternate Court to Mr.Justice
M.Nirmalkumar. Therefore, the matter was placed before this Court by the
Registry on 26.08.2021, the next hearing date. This statement is made
because Mr.R.Singaravelan, learned Senior Counsel, who appeared before
this Court on 26.08.2021 and Mr.L.V.Rohith, learned counsel who now
appears on behalf of the petitioner herein expressed wonder as to how the
matter was placed before this Court. The learned Senior Counsel and the
learned counsel should understand that the matter has been placed only in
accordance with the Roster determined by the Hon'ble Chief Justice. Without
examining the cause list, particularly the notification published on
19.08.2021 by the High Court, an unwarranted statement had been made by
Mr.R.Singaravelan, learned Senior Counsel who after making that statement
disappeared, and in his place a new counsel Mr.L.V.Rohith, learned counsel
has advanced arguments today. I hope that this explanation would satisfy
the petitioner. It is to be mentioned that the Hon'ble Chief Justice did not
change the portfolio of this particular Court alone but also shuffled the
portfolio of a few other Judges and this was necessitated owing to the
retirement of Mr.Justice N.Kirubakaran.
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4.Now I shall address the issue raised in the present petition.
Crl.O.P.No.14096 of 2021 has been filed seeking to withdraw the
C.C.No.12 of 2019 now pending before the Additional Special Court for
Trial of Criminal Cases related to Elected Members of Parliament and
Members of Legislative Assembly of Tamil Nadu, and to transfer the same
to some other Court of competent jurisdiction.
5.The only reason advanced, is quite strange. When I put a specific
question to both the learned Counsels, they stated that they have not done
any research on the particular aspect, which they have now raised. But, let
me answer the issue which has been raised.
6.As against the present petitioner/A1, First Information Report was
originally lodged on 22.08.1997 in Cr.No.15 of 1997, under Sections
120(B), 409, 420 of I.P.C and under Section 13(2) r/w 13(1)(d) of P.C. Act,
1988, by any mathematical calculation, nearly about 24 years ago.
Thereafter, the final report was filed on 27.02.2004 and it was taken
cognizance as C.C.No.12 of 2004 by the Principal Sessions Judge, City Civil
Court, Chennai and made over to the IV Additional Sessions Judge, City
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Civil Court, Chennai. On constitution of the Special Court, to examine the
cases against the Elected Members of Parliament and Members of
Legislative Assembly of Tamil Nadu, the matter had been transferred to the
Additional Special Court and it was taken on file and renumbered as
C.C.No.12 of 2019. Thankfully, the trial had come to an end. All the
witnesses had been examined. Substantial arguments had also been
advanced. This was the position in February, 2020.
7.Thereafter, my attention had been drawn to the subsequent hearing
dates which took place. It must also be kept in mind that from March, 2020,
there was a national lockdown owing to COVID-19 pandemic situation and
no Court could function, and much less, no Court could examine any
witness or even invite witnesses to the Court premises for being examined
and also for being cross-examined. That was a reality which the learned
Counsel should understand. My attention had been drawn to the
proceedings on 25.10.2019, when it was stated that after completion of the
evidence of the prosecution witnesses, questions under Section 313 of
Cr.P.C., were put to the accused, including this particular accused, and as
fairly stated even on the earlier occasion by Mr.R.Singaravelan, learned
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Senior Counsel and Mr.L.V.Rohith, learned Counsel for the petitioner who
today appears, the present petitioner waived the right to examine any
defence witness.
8.The Special Public Prosecutor however then filed an application on
30.10.2019 to recall P.W-63. That application was allowed. That order has
not been challenged till this particular date. The next progress of the case
was on 20.11.2019 and I must make it clear that it was not the successive
hearing date. On 20.11.2019, the Public Prosecutor filed an application to
recall P.W-3.
9.The present petitioner was again examined under Section 313 of
Cr.P.C., with respect to the incriminating portion of the evidence of P.W-3.
It is to be specifically mentioned that the present petitioner herein did not
seek to examine any defence witness.
10.Thereafter, the case again proceeded on 04.02.2020. It is seen that
the counsel for the present petitioner/A1 advanced arguments and filed
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written arguments. On 11.02.2020, the Special Public Prosecutor filed an
application under Section 311 of Cr.P.C., to recall P.W-11. The trial had
thus been meandering and circulating around the same stage. On
26.02.2021, after the lifting of the lock down, a perusal of the notes shows
that A1, A4 and A5 were present and were questioned under Section
313(1)(b) of Cr.P.C., with respect to the evidence recorded during the
further examination of P.W-11. Thereafter, on 25.03.2021, A1, A4 and A5
were present and were questioned again under Section 313(1)(b) of Cr.P.C.,
on the further evidence of P.W-63. The events after such examination of the
present petitioner/A1 under Section 313(1)(b) of Cr.P.C., with respect to the
incriminating evidence adduced by P.W-63 after being recalled by the
learned Public Prosecutor, has led to the filing of the present petition. The
petitioner seeks to withdraw the case and to transfer the case to some other
Court of competent jurisdiction.
11.It is the contention of the learned Senior Counsel/learned Counsel
who alternatively argued, by drawing my attention to the questions put
during the course of examination under Sec.313 of Cr.P.C., that the present
petitioner was requested to explain the incriminating portions of P.W-63 and
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thereafter, question No.4 was whether the present petitioner had anything to
state with respect to such incriminating evidence. The answer was that she
had already given her statement in writing. The next question which had
been typed, was whether she had any defence witnesses to examine. That
particular question, had been struck off by the learned Judge. Claiming that
the learned Judge has therefore, caused prejudice and had not permitted the
petitioner herein an opportunity of examining any defence witness with
respect to the statements made by P.W-63, when recalled, the present
petition has been filed.
12.It is the claim that an application has been filed under Section 311
Cr.P.C., by the present petitioner in Crl.M.P.No.11878 of 2021, seeking
permission to examine two witnesses namely, Tmt. Senthil Kumari,
Formerly Additional Superintendent of Police, CB CID, Chennai, now D.I.G
of Police and Tmt. Radhika, formerly Additional Superintendent of Police,
CB CID, Chennai, now D.I.G of Police, V&A.C., Chennai. That application
came to be dismissed by order, dated 23.07.2021.
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13.It is pointed out by Mr.E.Raj Thilak, learned Government
Advocate (Criminal Side) that the present petitioner has not challenged that
particular order, but, rather had filed the present petition, seeking to transfer
the case from the Court where the trial had been conducted and which must
be kept in mind, is the Special Court dealing with cases against Elected
Members of Parliament and Members of Legislative Assembly of Tamil
Nadu.
14.In so far as the right to examine the defence witnesses on
completion of prosecution evidence and after questioning under Section 313
of Cr.P.C., is concerned, when the accused seek to examine a particular
witness, opportunity must be granted. There cannot be any second opinion
on that particular aspect. It is also incumbent on the part of the accused to
give the list of witnesses and also to give their addresses, so that, summons
can be issued to those witnesses, inviting them to adduce evidence on behalf
of the accused.
15.It must also be kept in mind that the evidence of the defence
witnesses cannot be examined as a stand alone evidence, but, must be
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examined with relation to the defence put up by the accused, during the
course of trial. If the accused had put up a defence of alibi, then to
corroborate and substantiate that particular evidence, witnesses can be
examined by the accused provided, of course, that the accused had given
that explanation when questioned under Section 313(1)(b) of Cr.P.C.
Otherwise, the evidence of the defence witness would only stand without
any basis. The accused may also produce defence witnesses to disprove the
case of prosecution. If, for example, the prosecution produces an eye
witness, who states that he was present in a place at the time of commission
of the offence, the defence witness can prove and produce a defence witness
who can say that the witness was not actually so present, but was present
elsewhere.
16.In the instant case, to the answers under Section 313 Cr.P.C.,
particularly with respect to the additional evidence adduced by P.W-63, the
present petitioner/accused had not given any such explanation seeking
requirement to examine any defence witnesses. It is to be noted that the
trend of judgments go that if prejudice is caused to the accused, the Court
should step in to prevent such prejudice being suffered by any accused,
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during the course of trial. The onus is on the accused to substantiate that
prejudice was caused.
17.In the instant case, learned Counsel stated that during the learned
Judge, while dismissing the application under Section 311 of Cr.P.C., filed
in Crl.M.P.No.11878 of 2021 had stated that she did not find any
requirement to examine the said two witnesses / officers. According to the
prosecution, the said two officers did not perform any investigation in the
present case. It is also evident that the matter related to a First Information
Report, which was lodged in the year 1997 and to a charge sheet which was
filed in the year 2004 was at the back of the mind of the learned Judge.
Therefore, the learned Judge was also under the pressure to complete the
trial at the earliest. This particular reasoning in the said petition has not
been challenged in manner known to law. Rather, it is now pressed as a
ground to transfer the case.
18.I had time to reflect on the issue raised and did some research.
Unfortunately the learned Counsel stated that he have not examined whether
evidence can be permitted on behalf of the accused, when a witness has been
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recalled, particularly when the accused had turned down such a request to
examine defence witnesses, when the opportunity was first presented after
completion of evidence on behalf of the prosecution and when questioned
under Section 313 of Cr.P.C.
19.In (2000) 9 SCC 754, Selvi J. Jayalalitha Vs. State by Deputy
Superintendent of Police, Chennai, the appellant was before the Hon'ble
Supreme Court, with respect to a criminal case, which was, at that particular
point of time, pending before the XII Additional Sessions Judge II, Chennai.
In that case, the prosecution evidence had been closed and the trial judge
had proceeded with questioning under Section 313 of Cr.P.C. Thereafter the
matter was posted for examination of defence witnesses. The appellant did
not produce any defence witness and did not present any list of defence
witnesses. The matter was then adjourned. In the next hearing date also, the
defence witnesses were not produced, nor was the list of witnesses to be
examined on the defence side presented. The case was again adjourned.
Then, trial Court chose to close the evidence for defence and posted the
matter for arguments. At that time, the appellant filed an application under
Section 311 of Cr.P.C to recall some of the witnesses, who had already been
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examined on behalf of the prosecution.
20.In the instant case, the only difference is that, the prosecution filed
an application under Section 311 of Cr.P.C., to recall among other
witnesses, P.W-63. In the precedent cited namely, (2000) 9 SCC 754, the
trial Court did not find the necessity to recall any witnesses for arriving at a
just decision of the case. The application was therefore dismissed. That
order was challenged before the High Court, under Section 482 of Cr.P.C.
A learned Single Judge dismissed that particular petition. Thereafter, the
appellant went before the Hon'ble Supreme Court. In the Hon'ble Supreme
Court, the Counsel for the appellant submitted a list of four witnesses to be
examined on behalf of the appellant therein. The Hon'ble Supreme Court
then observed as follows in para No.6:-
“6. The trial court should afford an opportunity
to the appellant to examine those witnesses. As the 1st
among the witnesses shown in the list is the appellant
herself, permission need be granted only if a separate
application in that behalf is filed under Section 315 of
the Code because it has to be done at the risk of the
appellant herself. It is submitted on behalf of the State
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of Tamil Nadu that the addresses of the witnesses have
not been furnished in the list and therefore it would
not be possible for the trial court to issue process. The
same list of names shall be submitted before the trial
court by the appellant on 8-5-2000 or at the most on
9-5-2000 and then addresses (as far as could be
gathered by the appellant) should also be shown
against each of the witnesses shown in the list. It is
agreed that summons can be handed over to the
counsel by the appellant as service would be effected
without causing any delay in the matter. We permit the
trial court to do so. A request has been made on
behalf of the appellant that examination of the defence
witnesses may not be insisted on before 15-5-2000.
There is nothing unreasonable in the said submission
and therefore we express the hope that the trial court
will accommodate the said request of the appellant. If
no application is made under Section 315 of the Code
the trial court need not wait for that part of the
matter.”
21.In para No.4 of the said order, the Hon'ble Supreme Court had
observed that,
"Yet as a Court of justice, we are of the view that one
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more opportunity can be granted to the appellant for
examining the defence witnesses if she proposes to do."
22.The Hon'ble Supreme Court had observed that, as a Court of
justice, opportunity can be granted for examining the defence witnesses if
the appellant proposes to do. In that particular case, as seen in para No.6,
specific dates have been given when the witnesses should be examined and
an outer date limit was also given. The Hon'ble Supreme Court had also
stated that if no application is made under Section 315 of Cr.P.C., the trial
Court need not wait for that part of the matter.
23.In Baba Vs. State of Maharashtra, reported in (2002) 9 SCC 567,
when examined under Section 313 of Cr.P.C., the accused declined to
examine any defence witness in reply to a specific question asked in the
original examination under Section 313 of Cr.P.C. But, in a fresh
examination under Section 313 of Cr.P.C., before the High Court, the
accused sought to examine three further witnesses. The High Court did not
grant such permission. The Hon'ble Supreme Court, in this case, had held
that High Court was justified in doing so.
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24.The contention raised before the Hon'ble Supreme Court, was that
in the justice delivery system and for proper administration of justice a
further opportunity ought to be given to the accused persons to lead defence
evidence before the Court and the matter ought to be adjourned awaiting the
evidence as may be available on record.
25.However, the Hon'ble Supreme Court did not take that contention
into the consideration. The Hon'ble Supreme Court observed as follows in
para No.7:-
“7. In our view, this prayer is rather belated and
cannot be accepted by reason of the fact that in the
original examination under Section 313 CrPC before the
trial Judge a specific question was asked as to whether
the accused person desired to examine any defence
witness and a specific reply came forth from the accused
rather promptly, in the negative. The High Court thought
it fit however to enter into the arena of Section 313 CrPC
examination afresh by reason of incompleteness of the
examination and in the examination before the High
Court the accused-appellant herein stated that the latter
would be desirous of examining three more witnesses;
when put forth by the High Court in the form of a definite
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question as to why the same stand was negated before the
trial court then came the reply from the appellant herein
to the following effect:
“It is true that in the trial court I said ‘no’ to
examine the witnesses, but now I want to examine
witnesses in my defence.””
26.It is thus seen that permission to grant opportunity to an accused to
examine a defence witness can be granted only with respect to the facts and
circumstances of that particular case. There cannot be any rigid rule either
permitting or refusing to permit such request sought. The test is to examine
whether prejudice would be caused to the accused if such a request is
refused.
27.In the instant case, as seen in the earlier two cases, when
prosecution had completed evidence and the accused was examined under
Section 313 of Cr.P.C., the present petitioner had expressed a clear cut
opinion that she was not prepared to examine any defence witness. At that
stage, she did not give any list of witnesses. She did not produce any
defence witnesses. The trial had moved further.
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28.Thereafter, the Prosecutor filed an application to recall P.W-63,
P.W-3 and P.W-11. The present petition is confined to the evidence
adduced by P.W-63 when recalled. There is no quarrel on the fact that
questions were put forth with respect to the incriminating evidence adduced
by P.W-63, when recalled. P.W-63, it must be kept in mind, was the
Investigating Officer. Thereafter, when asked whether the present petitioner
had anything to state, the petitioner stated that she had already submitted
whatever she wanted to state in writing at the earlier instance. The only
grievance is that, she was not granted any opportunity to examine defence
witness and that the question in that regard was struck off by the learned
Judge and her application seeking such a permission was also dismissed by
the trial Court.
29.There is yet another judgment of the Hon'ble Supreme Court
reported in (2015) 1 SCC 96, Nar Singh Vs. State of Haryana. In that
particular case, the Hon'ble Supreme Court went on to observe as to what
'prejudice' would imply. The onus was on the accused to show that
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“prejudice has been caused or where prejudice has been implicit and
whether the Appellate Court has the power to remand the case for a re-
decision from the stage of recording of statement under Section 313 of
Cr.P.C”.
30.That case primarily related to omission of putting questions with
respect to incriminating evidence adduced by the prosecution. The Hon'ble
Supreme Court had stated that the Appellate Court should “examine and
further examine the convict or the counsel appearing for the accused”
whether the accused had acceptable explanations to offer with respect to the
questions put under Section 313 Cr.P.C. The High Court should satisfy
that “no prejudice was caused or no failure of the justice was occasioned”.
If it was of the opinion that “non-compliance of the provisions under
Section 313 of Cr.P.C., has been occasioned or is likely to have
occasioned prejudice to the accused, the appellate Court may direct
retrial from the stage of recording the statements of the accused under
Section 313 of Cr.P.C.,” and directions can be given to the trial Court.
31.Thus the issue now to be examined is whether the present
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petitioner has suffered prejudice owing to denial of opportunity to examine
the two defence witnesses. The present petitioner claims that prejudice is
caused. It is seen that in the application filed under Section 311 of Cr.P.C.,
in Crl.M.P.No.11878 of 2021 which is not under consideration of this Court,
still, the present petitioner had stated that valuable evidence has to be
brought on record and ambiguity in the statement of witness examined
cannot be left open.
32.The petitioner stated the two named witnesses, Tmt. Senthil
Kumari and Tmt. Radhika have to be examined as witnesses on the side of
the petitioner.
33.Having given my deep consideration to the arguments advanced
on behalf of the petitioner and also by the learned Government Advocate on
behalf of the prosecution, I hold that the petitioner herein should be granted
an opportunity to examine the two named witnesses. They are also police
officials. It is claimed by the learned Counsel for the petitioner that they
were, at some point of time, involved with the investigation. This aspect has
been denied by the prosecution. It does not lie in the mouth of the either one
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of the counsels to assert or deny that fact. The best evidence can be
obtained from the witnesses themselves. They will know whether they were
or were not part of the investigation process. I am confident, as responsible
police officials, they will state the actual facts regarding their knowledge
with respect to the facts surrounding this particular case. Therefore, even on
examining the issue from a converse angle, I hold that no prejudice would be
caused to the prosecution by examining the two witnesses. However, they
can be examined by the petitioner only with respect to the facts stated in the
additional evidence of P.W-63, after being recalled.
34.This has been consented to by Mr.L.V.Rohith, learned Counsel for
the petitioner. When a specific question was put to the learned Counsel, he
stated that the examination of the two witnesses would be restricted only
with respect to the additional evidence given by P.W-63 after being recalled.
Therefore, let the two witnesses aforementioned, be examined to that limited
aspect by the accused No.1/petitioner herein. The two witnesses may also
be cross-examined by the prosecution.
35.A time frame / schedule is also fixed by this Court. I am
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informed that C.C.No.12/2019 is again scheduled to be heard on 02.09.2021
before the learned Trial Judge. On 02.09.2021, the petitioner herein, may
file a memo seeking permission to examine the two additional witnesses. I
am conscious of the fact that the learned Judge had dismissed the
application filed under Section 311 of Cr.P.C., to examine those two
witnesses in Crl.M.P.No.11878/2021. But, as a Court of Justice, let me
proceed further and ensure that the trial comes to an end, instead of
circulating around that particular issue. Therefore, even though that order
had not been put to test before me and even though the present application
relates to transfer of the case, which relief I am not inclined to grant, I would
rather, on the other hand, direct that the two witnesses stated by the
petitioner be examined as defence witnesses.
36.The following schedule is therefore fixed.
(i) On 02.09.2021, the petitioner is to give the names of the two
witnesses and the posts they are now holding. The matter may be adjourned
to 06.09.2021.
(ii) By that particular date, summons to both the witnesses are to be
served and they must be present in the Court.
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(iii) They must be examined on 06.09.2021, again restricting their
evidence in chief by the petitioner / A1 only to the additional evidence
adduced by P.W-63, after being recalled.
(iv) They must be examined on 06.09.2021 and cross-examined on
behalf of the prosecution.
(v) This exercise, if not completed on 06.09.2021, may be further
taken upon 08.09.2021 and again on 13.09.2021, but, should be completed
finally by 15.09.2021.
37.The two witnesses shall be bound to appear before the Court on
06.09.2021, 09.09.2021, 13.09.2021 and 15.09.2021. If however their
examination in chief and cross-examination is completed, they can be
discharged.
38.I am informed that arguments have already been advanced and
written arguments have also been filed. If any further arguments are to be
stated, they may be advanced and written arguments should be filed on or
before 24.09.2021. Let the matter be heard on a day to day basis from
20.09.2021 till 24.09.2021. On completion of the entire process of hearing
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arguments, an obligation is placed on the learned Trial Judge to deliver the
judgment on merits, on appreciation of evidence, on appreciation of relevant
factors and on appreciation of the matters on record within the time
stipulated by the Code, and at any rate by 30.09.2021.
39.The present Criminal Original Petition is disposed of with the
above directions. The trial is to proceed before the same Judge. The relief
seeking transfer is specifically rejected. I am confident that the learned Judge
would bestow attention and examine the merits of the case and examine the
evidence and deliver a judgment in accordance with law. Consequently, the
connected miscellaneous petition is closed.
31.08.2021
Index:Yes/No
Internet:Yes/No
smv/grs
Note: Issue order copy today (01.09.2021)
To,
1.The Deputy Superintendent of Police,
CBCID, Metro Wing,
Chennai.
2.The Additional Special Court for Trial of Criminal Cases related to Elected
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Members of Parliament and Members of Legislative Assembly of Tamil
Nadu, Chennai.
C.V.KARTHIKEYAN,J
smv/grs
Crl.O.P.No.14096 of
and Crl.M.P.No.7717 of
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31.08.2021
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