Madras High Court
Uma Sankar vs State Rep. on 3 February, 2021
Crl.O.P.(MD)No.1368 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :03.02.2021
CORAM :
THE HONOURABLE Mrs. JUSTICE R. HEMALATHA
Crl.O.P.(MD)No.1368 of 2021
and
Crl.M.P(MD).No.659 of 2021
Uma Sankar ... Petitioner
Vs.
1.State rep., by
The Inspector of Police,
Virudhunagar West Police Station,
Virudhunagar District.
(Crime No.609 of 2013)
2.A.S.Jeyakkar ... Respondents
Prayer : Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure to call for the records and set aside the order passed by
the Judicial Magistrate No.1, Virudhunagar in Cr.M.P.No.1733 of 2020 in
CC.No.62 of 2014 dated 22.10.2020.
For Petitioner : Mr.AK.Azagarsami
For Respondent No.1 : Mr.S.Chandrasekar
Additional Public Prosecutor
ORDER
The present petition is filed by the petitioner to set aside the order
passed by the Judicial Magistrate No.I, Virudhunagar on 22.10.2020 in
Cr.M.P.No.1733 of 2020 in CC.No.62 of 2014, in and by which, the Judicial
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Crl.O.P.(MD)No.1368 of 2021
Magistrate No.I, Virudhunagar allowed the petition filed under Section 311
of the Code of Criminal Procedure.
2.The case of the prosecution is that one Gnanasekar, received the
stolen jewels from the accused. According to the prosecution, the said
Gnanasekar is working in IIFL Bank, Srivilliputhur and that unless he is
examined, the prosecution would not be in a position to bring out the guilt
of the accused. The learned Judicial Magistrate, after hearing both the
prosecution and the accused, passed an order in Cr.M.P.No.1733 of 2020,
thereby, allowing the petition on 22.10.2020.
3. A perusal of the orders passed by the Judicial Magistrate shows
that the said Gnanasekar has not been shown as a witness in the final report
and that the prosecution wanted to examine him as an additional witness in
order to establish the guilt of the accused.
4.The main contention of Mr.AK.Azagarsami, learned counsel
appearing for the petitioner/accused is that when both side evidence is
closed and the matter is reserved for judgment, the prosecution came out
with such a petition and that the Judicial Magistrate No.1, Virudhunagar
without applying his mind has passed an order allowing the petition filed by
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Crl.O.P.(MD)No.1368 of 2021
the prosecution. His specific contention is that after the evidence is closed
on both sides, the prosecution should not try to fill up the lacunae.
5.It is pertinent to point out that the learned Judicial Magistrate has
considered the arguments of the accused and held that the prosecution is not
trying to fill up the lacunae by examining the said Gnanasekar, subsequent
to the closure of the prosecution evidence. It is the duty of the Court to
arrive at the truth and subserve the ends of justice. The power under
Section 311 of the Code of Criminal Procedure is given to the Court not to
be merely exercised at the bidding of any one party / person but the powers
conferred and discretion vested are to prevent any irretrievable or
immeasurable damage to the cause of society, public interest and
miscarriage of justice. Recourse may be had by Courts to power under this
Section only for the purpose of discovering relevant facts or obtaining
proper proof of such facts, as are necessary to arrive at a just decision in the
case. In the decision in S.R.Sinha vs. Mrinal Sengupta and others reported
in (2007) 11 SCC 802, it is held that
"What is important is that if the interests of
justice so demands and a witness is required to be
re-called, even the inconvenience that may caused
of re-calling witnesses for cross-examination, if that
becomes necessary in order to ensure that there is
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Crl.O.P.(MD)No.1368 of 2021
no prejudice caused to the accused persons, should
not by itself be a ground to refrain from re-calling
the witness or examining a witness. The observation
of the learned Judge that it gives the impression as
if the prosecution is tilting in favour of one party at
the cost of the other, does not seem to be wholly
justified"
It is further held in the said decision that there is no bar against the
examination of a witness even at a stage subsequent to the recording of the
statement of the accused in exercise of power under Section 311 of the Code
of Criminal Procedure.
6. In the instant case, the learned Judicial Magistrate has dealt with all
the aspects in his orders dated 22.10.2020 and I do not find any reason to
interfere with the orders, especially, when the accused has not shown as to
how he is prejudiced by allowing the petition filed under Section 311 of the
Code of Criminal Procedure. Accordingly, the Criminal Original Petition is
dismissed. Consequently, connected Miscellaneous Petition is closed.
03.02.2021
Index : Yes/No
Internet:Yes/No
rmk
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Crl.O.P.(MD)No.1368 of 2021
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Judicial Magistrate No.I, Virudhunagar.
2.The Inspector of Police,
Virudhunagar West Police Station,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.1368 of 2021
R. HEMALATHA, J.,
rmk
Crl.O.P.(MD)No.1368 of 2021
03.02.2021
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