Madras High Court
Kumaresan vs State Rep By The Inspector Of ... on 23 November, 2021
Crl.RC.No.830 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2021
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.RC.No.830 of 2021
and Crl.MP.12033 of 2021
Kumaresan ... petitioner
Vs.
State Rep by The Inspector of Police,
B6 Peelamedu Police Station,
Coimbatore (Cr.No.605 of 2018) .... Respondents
PRAYER : Criminal revision is filed under Section 397 and
401 of Criminal Procedure Code to set aise the Docket order dated
08.11.2021 made in CC.No.75 of 2018 on the file of the Additional
District Judge/Presiding Officer, Special Court for EC Act cases,
Coimbatore.
For petitioner : Mr.A.Padmanabhan for Mr.R.Prabakar.
For respondent : Mr.S.Sugendran, GA (Crl.side).
ORDER
This revision has been filed seeking to set aside the docket
order dated 08.11.2021 made in CC.No.75 of 2018 on the file of the
Additional District Judge/Presiding Officer, Special Court for EC Act
cases, Coimbatore.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
2. The brief facts of the case is as follows :-
The petitioner, arrayed as A3 in CC.No.75 of 2018 on the file
of the Additional District Judge/Presiding Officer, Special Court for EC
Act cases, Coimbatore, is facing trial for the offences under Sections 8(c)
r/w.20(b)(ii)(B), 25 of NDPS Act. The trial was in progress and the
matter was posted on 08.11.2021 for the appearance of A1, A2 and A3
and for examination of LW2 and LW3. Whileso, the petitioner/A3 had
appeared before the trial Court on 08.11.2021, however, the counsel for
the petitioner had not appeared on that day. LW3 alone had appeared on
that day and he was examined as PW3. The counsel for A1 and A2 had
cross examined PW3 and when the Court had enquired the petitioner/A3,
he had replied that there is no cross examination on his behalf and that
his advocate had asked him to inform the Court that there is no cross on
his side. The Trial Court, finding that A3 was indulging in dilatory
tactics and dragging on the proceedings by relying on the ratio laid down
by the Hon'ble Apex Court in the case of State of U.P. Vs. Shambhu
Nath Singh reported in (2001) 4 SCC 667, had remanded the petitioner
to judicial custody, against which the present revision has been filed.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
3. The learned counsel for the petitioner would submit that the
petitioner/A3 in this case had been regularly appearing before the Court
and that on 08.11.2021, the case was posted for appearance and
examination of LW2 and LW3, however, on that day, LW2 had not
appeared before the Court and LW3 alone had appeared and he was
examined by the prosecution as PW3. He would further submit that in
the Section 161 Cr.PC statement recorded from LW3, no averment was
made against the petitioner and thereby finding that cross examination of
PW3 was not necessary and required, the counsel for the petitioner who
was unable to come to Court had instructed the petitioner to inform the
Court that no cross examination was required on his side. He would
further submit that even during examination in Court LW3 who was
examined as PW3 had not deposed anything against the petitioner.
Hence, as directed by his Counsel, the petitioner had when enquired by
the trial Judge had replied that he does not intend to cross examine PW3.
He would also submit that the petitioner had also not made any request to
the Court for adjournment or filed any petition seeking to defer the cross
examination, rather the petitioner had only reported to the Court that
there is no cross examination and thereby at no stretch of imagination the
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
petitioner can be held to have adopted dilatory tactics for dragging the
trial.
4. The learned counsel would further submit that when the
petitioner has not intended to cross examine the witness, the trial Court
ought to have recorded no cross on the side of the petitioner and closed
the evidence of the particular witnesses, and posted the case to some
other date for examining the other witnesses, whereas, the Trial Court
without any justifying cause in gross violation of the right of liberty
granted to the petitioner and envisaged under Articles 21 and 22 of the
Constitution of India, without affording any opportunity and in violation
of procedure established under law had directed the remand of the
petitioner. He would also submit that the petitioner had been fully
coopearting for trial and he had also not caused any delay in trial on any
earlier occasion.
5. The learned counsel would further submit that subsequently,
the petitioner had also filed application for bail and the trial Court had
referred to the words spoken by the petitioner in the Court and that the
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
petitioner had only informed the Court that his counsel had told him that
there is no cross examination on his behalf.
6. The learned counsel appearing for the petitioner would
submit that in the case of State of U.P. Vs. Shambhu Nath Singh
referred by the trial Judge the Hon'ble Apex Court has held that if the
accused or his counsel does not cooperate for day to day examination of
witnesses, the Court can remand the accused to custody or in alternate,
when the accused is absent and the witness is present to be examined, the
Court can cancel the bail, already granted to him. Such a situation had
not arisen in this case and except reporting to Court that there is no cross
examination on his side, the petitioner has not done anything so as to
delay the trial and reporting no cross examination does not amount to
dilatory tactics, that too when the petitioner has not asked for any
adjournment in this case on account of his advocate being not present on
the particular day.
7. The learned counsel would reiterate that even reading of the
deposition of PW3 would disclose that there is no requirement for the
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
petitioner to cross examine PW3, other than intimating the Court that
there is no cross examination, he had not done anything amounting to
dilatory tactics. He would further submit that the order of remand is in
violation of procedure established by law and the order of remand is
illegal. He would thereby seek to set aside the order of remand and pray
that the petitioner may be directed to be released on bail.
8. The learned Government Advocate (Crl.side) would submit
that the case was posted for examination of LW2 and LW3 on
08.11.2021 and on that day, LW2 did not appear and LW3 was examined
as PW3. He would submit that PW3 has spoken about the involvement
of A1 and A2 and he has not deposed anything about the involvement of
A3 in this case.
9. Heard the counsel and perused the materials available on
record.
10. The petitioner is A3 in CC.No.75 of 2018 facing trial for
the offences under Sections 8(c) r/w.20(b)(ii)(B), 25 of NDPS Act. The
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
case had been posted for appearance of LW2 and LW3, on that day LW2
did not appear and LW3 was present and he was examined as PW3. In
this case, the counsels for A1 and A2 have cross examined the witnesses
and when the trial Judge had questioned the petitioner, he had informed
that his counsel had told him that there is no cross examination on his
side. The learned trial Judge, by relying on the judgment of the Hon'ble
Apex Court in the case of State of U.P. Vs. Shambhu Nath Singh
referred supra, had remanded the accused/petitioner to judicial custody.
11. As stated above, in this case, the petitioner/accused was
present and he had informed the Court that there is no cross examination
on his side. Perusal of the deposition also show that PW3 has not
deposed anything about the petitioner/A3 and there was also no necessity
for the petitioner/A3 to cross examine the witnesses. The words spoken
by the petitioner/A3 in the Court has been extracted by the trial Judge in
the the order dated 15.11.2021. It is useful to refer to the particular
portion :
"new;W kjpak; 2/00kzpf;F kJiuapy; ,Ue;J
fpsk;gp ,ut[ ,';F te;J nrh;e;njd;/ vd;Dila tHf;Fiu"h;
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
ehisa rhl;rp tprhuizapd; nghJ vdJ jug;gpy; FWf;F
tprhuiz vJt[k; ,y;iy vd;W brhy;yr; brhd;dhh;/ "
12. In State of U.P. Vs. Shambhu Nath Singh reported in
(2001) 4 SCC 667 the Hon'ble Apex Court has held :-
"14. If any court finds that the day to day
examination of witnesses mandated by the legislature
cannot be complied with due to the non co-operation of
accused or his counsel the court can adopt any of the
measures indicated in the sub-section i.e. remanding the
accused to custody or imposing cost on the party who
wants such adjournments (the cost must be commensurate
with the loss suffered by the witnesses, including the
expenses to attend the court). Another option is, when the
accused is absent and the witness is present to be
examined, the court can cancel his bail, if he is on bail
(unless an application is made on his behalf seeking
permission for his counsel to proceed to examine the
witnesses present even in his absence provided the accused
gives an undertaking in writing that he would not dispute
his identity as the particular accused in the case.) "
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
13. The above decision makes it clear that only when the
accused and the counsel are absent and only when dilatory tactics is
adopted by the accused, the Court can impose cost on the party who
wants adjournment or if the accused is on bail cancel the bail granted to
him. In this case, the petitioner was present before the Court on the date
of hearing and he had only stated that there is no cross examination on
his side. He had not asked for any adjournment or filed any petition
seeking to defer cross examination. The act of the petitioner can at no
stretch of imagination be construed to adopting dilatory tactics. In such
circumstances, the trial Court ought to have recorded no cross on the side
of the petitioner/A3, in respect of the particular witness and closed his
evidence and posted the case to some other date for examination of other
witnesses. The learned trial Judge without proper understanding the ratio
laid down in the State of U.P. Vs. Shambhu Nath Singh referred supra
had remanded the accused, without following due process of law.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
14. In the opinion of this Court, when such an order of remand
is passed not in accordance with the procedure established by law, it has
to be set aside.
15. In view of the above, the criminal revision stands allowed
and the order dated 08.11.2021 made in CC.No.75 of 2018 passed by the
Additional District Judge/Presiding Officer, Special Court for EC Act
cases, Coimbatore remanding the petitioner/accused is set aside and the
petitioner/accused is ordered to be released on bail on condition :-
(a) he executes a bond for a sum of Rs.10,000/- (Rupees Ten
Thousand only), with one surety each for a like sum to the satisfaction of
the Additional District Judge/Presiding Officer, Special Court for EC
Act cases, Coimbatore, and on further conditions that;
(b) the surety shall affix his photograph and Left Thumb
Impression in the surety bond and the learned Judge may obtain a copy of
their Aadhar Card or Bank Pass Book to ensure his identity;
(c) the petitioner, on his release from the prison, shall
report before the Trial Court everyday at 10.30 a.m. for a period of
one week and thereafter on all hearing dates without fail;
(d) the petitioner shall not abscond during trial;
(e) the petitioner shall not tamper with evidence or witness
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
during trial and he would cooperate for speedy trial.
Consequently, connected miscellaneous petition is closed.
23.11.2021
tsh
To
1. The The Inspector of Police,
B6 Peelamedu Police Station, Coimbatore
2. The Additional District Judge/Presiding Officer,
Special Court for EC Act cases, Coimbatore
Note : Issue order copy on 23.11.2021.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.830 of 2021
A.D.JAGADISH CHANDIRA, J
tsh
Crl.RC.No.830 of 2021.
23.11.2021
https://www.mhc.tn.gov.in/judis
