Madras High Court
P.Manikandan vs State Rep. By Its on 24 June, 2021
CRL.O.P.No.9739 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.9739 of 2021
P.Manikandan ... Petitioner
Versus
State Rep. by its.,
The Inspector of Police,
Mohanur Police Station,
Mohanur,
Namakkal District.
(Cr.No.441 of 2016). ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, to set aside the order made in Crl.M.P.No.320 of
2021 in Special C.C.No.15 of 2018, dated 26.03.2021 on the file of the
Sessions (Fast Track Court Mahila) Court, Namakkal.
For Petitioner : Mr.C.Prakasam
For Respondent : Mr.A.Damodaran,
Government Advocate (Crl. Side)
*****
ORDER
The petitioner/accused, who is facing trial in Special C.C.No.15 of
2018, for offence under Sections 366(A), 5(l) r/w 6 of the Protection of
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Children from Sexual Offence Act, 2012 has filed a petition under
Section 311 Cr.P.C., before the learned Sessions (Fast Track Mahila)
Judge, Namakkal in Crl.M.P.No.320 of 2021 in Special C.C.No.15 of
2018. The learned Sessions (Fast Track Mahila) Judge, Namakkal, by
order, dated 26.03.2021, dismissed the petition, against which the present
petition.
2.The learned counsel for the petitioner submitted that the victim
girl/PW1 was examined in chief on 20.03.2019. At the time of cross
examination, the petitioner was present, but the Advocate who is
defending the petitioner during trial, was held up in another Court and
did not cross examine the victim girl. Hence, a petition under Section
309 Cr.P.C., was filed in Crl.M.P.No.171 of 2019 seeking adjournment
for cross examination of PW1. The trial Court without considering the
same dismissed the petition. The petitioner earlier sought for some
documents under Section 207 Cr.P.C., and also filed a petition under
Section 311 Cr.P.C., in Crl.M.P.No.320 of 2021 to recall the victim girl
for cross examination. During trial, the petitioner was charged and
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CRL.O.P.No.9739 of 2021
facing trail for heinous offence committed by him. The presumption is
starring against the petitioner who is facing the trail for offence under the
provisions of the Protection of Children from Sexual Offence, Act, 2012
and hence, the petitioner has to necessarily cross examine the victim
girl/PW1 to putforth his defence and dislodge the presumption.
3.The learned counsel further submitted that the respondent Police
filed counter in the recall petition mechanically. In the counter, it is
mentioned that the recall petition has been filed for the reason that the
petitioner had omitted to put up some vital points to the witnesses and for
the purpose of dragging the proceedings in Special C.C.No.15 of 2018,
which is not proper on the facts of the case. The learned counsel further
submitted that earlier, the victim girl/PW1 lodged a complaint against the
petitioner for the alleged offence said to have taken place on 15.01.2016,
for which, a case in Crime No.16 of 2016 was filed against the petitioner.
After investigation, charge sheet was filed before the trial Court and the
same was taken on file as Special C.C.No.17 of 2016. After ful-fledged
trial, the trial Court passed a judgment of the conviction dated
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CRL.O.P.No.9739 of 2021
17.11.2017 and convicted the petitioner for offence under Section 366(A)
IPC and sentenced to undergo seven years Rigorous Imprisonment and to
pay a fine of Rs.1,000/-, in default to undergo three months Rigorous
Imprisonment and also convicted for offence under Section 5(l) r/w 6 of
the Protection of Children from Sexual Offence, Act, 2012 and sentenced
to undergo ten years Rigorous Imprisonment. As against the same, the
petitioner filed an appeal before this Court in C.A.No.812 of 2017 and
obtained order of suspension of sentence. The alleged occurrence in this
case is said to have taken place after the petitioner came out on bail as
under trial prisoner in Crime No.16 of 2016. These vital facts have to be
put to the victim girl/PW1 to prove that the petitioner is not the offender
and only due to the harassment and torture caused by her family
members, she had left her house on her own and joined the petitioner
seeking solace and protection. Suppressing all these facts, the petitioner
is facing prosecution on the false complaint.
4.The learned Government Advocate (Crl. Side) appearing for the
respondent Police submitted that the petitioner is facing trial under the
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CRL.O.P.No.9739 of 2021
provision of the Protection of Children from Sexual Offence Act, 2012.
Earlier, the petitioner was convicted by the same trial Court in Special
S.C.No.17 of 2016 for committing the offence against the same victim
girl/PW1. Despite the same, the petitioner repeated the same offence on
the same victim girl/PW1. As per Section 33(5) of the Protection of
Children from Sexual Offence Act, 2012, the child is not to be called
repeatedly to testify in the Court. Hence, he opposed for setting aside the
order of the trial Court.
5.This Court considered the rival submissions and perused the
materials available on record.
6.In this case, the victim girl/PW1 earlier lodged a complaint and
the case in Crime No.16 of 2016 was registered. After filing of charge
sheet and completion of trial in Special C.C.No.17 of 2016, the petitioner
was convicted and sentenced as stated above. As against the conviction
and sentence, the petitioner preferred an appeal before this Court in
C.A.No.812 of 2017.
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CRL.O.P.No.9739 of 2021
7.As far as this case is concerned, it is a second occurrence which
is said to have taken place on 27.12.2016 against the same victim
girl/PW1. Hence, the petitioner has to necessarily putforth these aspects
before the victim girl/PW1 which are vital in nature. Further, the
statutory presumption against the petitioner. The petitioner is facing trial
for the heinous offence committed by him on the victim girl/PW1.
Hence, the cross examination of the victim girl/PW1 is very necessary. It
is also seen that the citation in the case of “Vinod Kumar Versus State of
Punjab reported in 2015 (3) SCC 220” pertains to the trap case under
the Prevention of Corruption Act. The right of the cross examination is a
fundamental right to the accused. The Hon'ble Division Bench of this
Court in the case of “M.Kannan Versus State., reported in
MANU/TN/0661/2017” had held that “for failure and gross dereliction
of duty of the learned counsel engaged by the accused, the accused
cannot be penalized.”
8.In view of the same, this Court is inclined to permit the
petitioner to cross examine the victim girl/PW1. The learned Sessions
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CRL.O.P.No.9739 of 2021
(Fast Track Mahila) Judge, Namakkal is directed to recall the victim
girl/PW1 within a period of one week from the date of receipt of a copy
of this order, of course after normal functioning of Court below. The
petitioner is directed to cross examine the victim girl on the day when
she is present without any further delay. It is made clear that no
adjudication would be sought by the petitioner on any grounds.
9.In view of the above, the order, dated 26.03.2021 in
Crl.M.P.No.320 of 2021 in Special C.C.No.15 of 2018 passed by the
learned Sessions (Fast Track Mahila) Judge, Namakkal is set aside.
Accordingly, this Criminal Original Petition is allowed.
24.06.2021
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Index: Yes/No
Internet: Yes/No
To
1.The Sessions Court (Fast Track Mahila),
Namakkal.
2.The Inspector of Police,
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CRL.O.P.No.9739 of 2021
Mohanur Police Station,
Mohanur,
Namakkal District.
3.The Public Prosecutor,
High Court, Madras.
M.NIRMAL KUMAR, J.
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CRL.O.P.No.9739 of 2021
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