Madras High Court
K.P.Subramaniam vs State Rep. By on 6 January, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.01.2021
CORAM
THE HON'BLE MR. JUSTICE N.ANAND VENKATESH
Crl.O.P.No.16993 of 2020
and Crl.M.P.No.6546 of 2020
K.P.Subramaniam,
S/o.Ponnusamy. ... Petitioner.
Vs.
State Rep. By
The Inspector of Police,
Tirupur North Police Station,
Tirupur City.
(Crime No.1293/2015) ... Respondent.
Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C. to set
aside the order dated 19.02.2020 made in 161 of 2020 in S.T.C.No.176 of
2016 on the file of the learned Judicial Magistrate No.I, Tirupur.
For Petitioner : Mr.P.M.Duraiswamy
For Respondents : Mr.C.Raghavan
Government Advocate (Crl.side)
https://www.mhc.tn.gov.in/judis/
2
ORDER
This petition has been filed challenging the order passed by the Court
below dismissing the application filed by the petitioner under Section 311
Cr.P.C. to re-call P.W.5 to P.W.7 for cross examination.
2.The petitioner is facing trial before the Court below for an offence
under Section 279 and 338 I.P.C. The prosecution examined P.W.5 to P.W.7
on 17.03.2017. These witnesses were not cross examined and their evidence
was closed. The petitioner filed an application under Section 311 Cr.P.C. on
13.01.2020 to re-call these witnesses for cross examination.
3.The Court below has dismissed the application filed by the
petitioner on the ground that there is a long delay and the petitioners did not
avail the opportunity to cross examine the witnesses on the day when they
were present. The Court below also relied upon the judgment of the Hon'ble
Supreme Court in Vinod Kumar Vs State of Punjab [2015 (1) MLJ (Crl)
288 SC] to support its views.
4.The learned counsel for the petitioner submitted that the witnesses
were not cross examined since the Advocate was not able to be present due
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to his ill health. The learned counsel further submitted that the petitioner
changed his counsel and the new counsel entered appearance only during
December 2019 and thereafter the application was filed to recall P.W.5 to
P.W.7 for cross examination. The learned counsel submitted that one last
chance may be given to the petitioner to cross examine the witnesses and
the petitioner is willing to comply with any conditions that may be imposed
by this Court.
5.Per contra, Mr.C.Raghavan, learned Government Advocate
(Crl.side) appearing on behalf of the respondent submitted that the case
pertains to the year 2016 and P.W.5 to P.W.7 were examined in chief on
17.03.2017. The learned counsel further submitted that even if the petitioner
was not able to cross examine the witnesses on the date when they were
examined in chief, steps should have been taken to immediately file a
petition to re-call witnesses and there is absolutely no reason as to why the
petitioner took steps after nearly three years to re-call these witnesses. The
learned counsel further submitted that there are absolutely no grounds to
interfere with the orders passed by the Court below and a direction should
be issued by this Court for an early disposal of the case by the Court below.
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6.This Court has carefully considered the submissions made on either
side and the materials available on record.
7.On a careful perusal of the materials placed before this Court, it is
found that P.W.5 is the sister of the victim and is an eye witness to the case.
P.W.6 is an Observation Mahazar witness and P.W.7 is a motor vehicle
Inspector. These witnesses were examined in chief on 17.03.2017. Even if
it is taken that the counsel was not able to be present on the date when these
witnesses were examined in chief, due to his ill-health, steps should have
been taken to immediately file a petition to re-call the witnesses. In this
case, there has been an inordinate delay of nearly three years in filing the
application to recall these witnesses. The application filed before the Court
below does not explain as to why it took such a long time for the petitioner
to file an application to re-call the witnesses.
8.In the considered view of this Court, this Court does not find any
illegality or infirmity in the order passed by the Court below. However,
taking into consideration the charges faced by the petitioner, this Court
deems it fit to give an opportunity to the petitioner to re-call and cross
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examine P.W.5, who is an eye witness in this case. This opportunity will
sufficiently safeguard the rights of the petitioner for a fair trial. This Court
is not inclined to re-call the other two witnesses viz., P.W.6 and P.W.7.
9.In view of the above, the Court below is directed to fix a date for
cross examination of P.W.5. The petitioner shall pay a cost of Rs.3,000/- to
P.W.5 on the date of her appearance before the Court. On such payment,
the Court below shall permit the petitioner to cross examine P.W.5 and the
cross examination shall be completed on the same date. It is also made clear
that any other witnesses examined on the side of the prosecution shall be
cross examined on the same date, they are examined in chief.
10.The order passed by the Court below is modified to the extent
indicated herein above and there shall be a direction to the Court below to
complete the proceedings in S.T.C.No.176 of 2016 within a period of two
months from the date of receipt of copy of this order.
N.ANAND VENKATESH, J.,
rm
11.This Criminal Original Petition is disposed of accordingly.
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Consequently, connected miscellaneous petition is closed.
06.01.2021
Speaking order/Non-Speaking order
Index :Yes/No
Internet:Yes/No
rm
To
1.The Inspector of Police,
Tirupur North Police Station,
Tirupur City.
(Crime No.1293/2015)
2. The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.16993 of 2020
https://www.mhc.tn.gov.in/judis/
