Madras High Court
C.Anithil vs / on 5 March, 2021
Crl.O.P.(MD)No.3447 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.03.2021
CORAM :
THE HONOURABLE Mrs.JUSTICE R.HEMALATHA
Crl.O.P.(MD)No.3447 of 2021
and
Crl.M.P.(MD)No.1893 of 2021
C.Anithil ...Petitioner
/Vs./
The State represented by
The Inspector of Police,
Pettai Police Station,
Tirunelveli District. ...Respondent
(Crime No.243 of 2015)
Prayer: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to set aside the order passed by the Additional Mahila
Court, Tirunelveli, in Cr.M.P.No.unnumbered of 2021, dated 20.01.2021
and consequently direct the trial Court to number and dispose the same.
For Petitioner : Mr.J.Jeyakumaran
For Respondent : Mr.S.Chandra Sekar
Additional Public Prosecutor
ORDER
The present petition is filed seeking to set aside the order passed by
the Additional Mahila Court, Tirunelveli, in Cr.M.P.No.unnumbered of
2021, dated 20.01.2021.
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Crl.O.P.(MD)No.3447 of 2021
2.The petitioner is the accused in C.C.No.305 of 2016 and he is
facing trial for the offences under Sections 341, 294 (b) and 506 (ii) of the
Indian Penal Code, 1860 and Section 4 of the Tamil Nadu Prohibition of
Harassment of Women Act, 2002. During the course of trial, the
prosecution examined seven witnesses on various dates from 19.09.2017 to
13.11.2018. The petitioner did not cross examine the witnesses PW1 to
PW7 on the date when they were examined in chief. Subsequently, he filed
a petition under Section 311 of the Code of Criminal Procedure in
Cr.M.P.No.3612 of 2017 and the Additional Mahila Judge, Tirunelveli,
allowed the said petition on payment of necessary process fee. Since the
present petitioner did not pay the process fee, the petition was dismissed.
Subsequently, on 18.01.2021, the petitioner filed another application under
Section 311 of the Code of Criminal Procedure to recall PW1 to PW7 and
the Additional Mahila Judge returned the said petition as not maintainable,
on the ground that the earlier petition filed by the petitioner under Section
311 of the Code of Criminal Procedure in Cr.M.P.No.3612 of 2017 was
already dismissed by him.
3.Mr.S.Chandra Sekar, learned Additional Public Prosecutor, on
instructions, would contend that though the petitioner filed a petition under
Section 311 of the Code of Criminal Procedure, subsequent to the dismissal
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Crl.O.P.(MD)No.3447 of 2021
of the earlier petition, the petitioner did not choose to cross-examine the
witnesses when they were in witness box and the calendar case is of the year
2016 and PW1 to PW3 were examined on the side of the prosecution on
19.09.2017 and PW4 and PW5 were examined on 10.10.2017. Thereafter,
PW6 and PW7 were examined on 13.11.2018 and on all these dates, the
counsel for the petitioner did not cross examine the witnesses.
4.Mr.J.Jeyakumaran, learned counsel for the petitioner contended that
the erstwhile counsel, who appeared on behalf of the petitioner did not cross
examine the witnesses and therefore, the petitioner engaged another counsel
to cross examine all the witnesses.
5.Such a ground cannot be accepted for recalling the witnesses and in
the decision in State (NCT of Delhi) vs. Shiv Kumar Yadav reported in
(2016) 2 SCC 402, the Hon'ble Supreme Court has held thus:
“29.We may now sum up our reasons for
disapproving the view of the High Court in the
present case:
(i)The trial court and the High Court held that
the accused had appointed counsel of his choice. He
was facing trial in other cases also. The earlier
counsel were given due opportunity and had duly
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Crl.O.P.(MD)No.3447 of 2021
conducted cross-examination. They were under no
handicap;
(ii)No finding could be recorded that the
counsel appointed by the accused were incompetent
particularly at the back of such counsel;
(iii) Expeditious trial in a heinous offence as is
alleged in the present case is in the interests of
justice;
(iv)The trial Court as well as the High Court
rejected the reasons for recall of the witnesses;
(v)The Court has to keep in mind not only the
need for giving fair opportunity to the accused but
also the need for ensuring that the victim of the crime
is not unduly harassed;
(vi)Mere fact that the accused was in custody
and that he will suffer by the delay could be no
consideration for allowing recall of witnesses,
particularly at the fag end of the trial;
(vii)Mere change of counsel cannot be ground
to recall the witnesses;
(viii)There is no basis for holding that any
prejudice will be caused to the accused unless the
witnesses are recalled;
(ix)The High Court has not rejected the
reasons given by the trial court nor given any
justification for permitting recall of the witnesses
except for making general observations that recall
was necessary for ensuring fair trial. This
observation is contrary to the reasoning of the High
Court in dealing with the grounds for recall I.e.,
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Crl.O.P.(MD)No.3447 of 2021
denial of fair opportunity on account of incompetence
of earlier counsel or on account of expeditious
proceedings;
(x)There is neither any patent error in the
approach adopted by the trial court rejecting the
prayer for recall nor any clear injustice if such
prayer is not granted.”
6. Further, in Rajaram Prasad Yadav Vs. State of Bihar reported in
(2013) 14 SCC 461, the Hon'ble Supreme Court has culled out certain
principles to be kept in mind, while exercising power under Section 311
Cr.P.C., which read as follows:-
“(i)The exercise of the widest discretionary
power under Section 311 Cr.P.C. should ensure that
the judgment should not be rendered on inchoate,
inconclusive speculative presentation of facts, as
thereby the ends of justice would be defeated.
(ii) If evidence of any witness appears to the
Court to be essential to the just decision of the case, it
is the power of the Court to summon and examine or
recall and re-examine any such person.
(iii) The exercise of power under Section 311
Cr.P.C. should be resorted to only with the object of
finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct
decision of the case.
(iv) The exercise of the said power cannot be
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Crl.O.P.(MD)No.3447 of 2021
unless the facts and circumstances of the case make it
apparent that the exercise of power by the Court
would result in causing serious prejudice to the
accused, resulting in miscarriage of justice.
(v) The wide discretionary power should be
exercised judiciously and not arbitrarily.
(vi) The Court must satisfy itself that it was in
every respect essential to examine such a witness or to
recall him for further examination in order to arrive at
a just decision of the case.
(vii) The object of Section 311 Cr.P.C.
simultaneously imposes a duty on the Court to
determine the truth and to render a just decision.
(viii) The Court arrives at the conclusion that
additional evidence is necessary, not because it would
be impossible to pronounce the judgment without it,
but because there would be a failure of justice without
such evidence being considered.
(ix) Exigency of the situation, fair play and
good sense should be the safe guard, while exercising
the discretion. The Court should bear in mind that no
party in a trial can be foreclosed from correcting
errors and that if proper evidence was not adduced or
a relevant material was not brought on record due to
any inadvertence, the Court should be magnanimous
in permitting such mistakes to be rectified.
(x) The Court should be conscious of the
position that after all the trial is basically for the
prisoners and the Court should afford an opportunity
to them in the fairest manner possible. In that parity of
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Crl.O.P.(MD)No.3447 of 2021
reasoning, it would be safe to err in favour of the
accused getting an opportunity rather than protecting
the prosecution against possible prejudice at the cost
of the accused. The Court should bear in mind that
improper or capricious exercise of such a
discretionary power, may lead to undesirable results.
.....
(xi)The power under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in order to
meet the ends of justice for strong and valid reasons
and the same must be exercised with care, caution and
circumspection. The Court should bear in mind that
fair trial entails the interest of the accused, the victim
and the society and, therefore, the grant of fair and
proper opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a human
right.”
7. The said decision has also been followed in Haryana Vs. Ram
Mehar and others reported in (2016) 8 Supreme Court Cases 762, where
the Hon'ble Supreme Court has held that “concept of fair trial cannot be
limitlessly stretched to permit recall of witnesses endlessly on ground of
magnanimity, etc.”
8.Though the earlier petition filed by the petitioner cannot be a bar for
filing a subsequent petition, it is seen that the petitioner without any valid
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Crl.O.P.(MD)No.3447 of 2021
reason has been filing petitions after petitions under Section 311 of the
Code of Criminal Procedure for cross examining the witnesses. Though in
the first instance the petition was allowed, the petitioner did not pay the
process fee and ultimately, the petition was dismissed. Once again the
petitioner filed another petition under Section 311 of the Code of Criminal
Procedure to recall the witnesses. The main reason stated by the petitioner
is that his erstwhile counsel did not cross examine the witnesses on the date
when the witnesses were examined in chief. In fact on three different dates,
PW1 to PW7 were examined. In the circumstance, it appears as if the
petitioner is trying to protract the proceedings.
9.In the result, this petition is dismissed. However, the Judicial
Magistrate, Additional Mahila Court, Tirunelveli, is directed to dispose of
C.C.No.305 of 2016, within a period of two months from the date of receipt
of a copy of this order / uploading of this order. Consequently, connected
Miscellaneous Petition is dismissed.
05.03.2021
Index : Yes/No
Internet:Yes/No
sm
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Crl.O.P.(MD)No.3447 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 Inspector of Police,
Pettai Police Station,
Tirunelveli District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.O.P.(MD)No.3447 of 2021
R.HEMALATHA, J.
sm
Crl.O.P.(MD)No.3447 of 2021
05.03.2021
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