Madras High Court
Senthil Kumaran vs Deputy Superintendent Of Police on 7 October, 2021
Crl.O.P.Nos.23235 & 23368 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.12.2021
DELIVERED ON : 10.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
Crl.O.P.Nos.23235 & 23368 of 2021
and Crl.M.P.Nos.12735 & 12798 of 2021
Senthil Kumaran .. Petitioner in both Crl.O.Ps.
Vs.
Deputy Superintendent of Police, V & A-C,
No.11, Ramasamy Gounder Street,
Kamala Lakshmi Colony, Dharmapuri - 636 701.
Dharmapuri District.
(Cr.No.3/AC/2000)
(Cr.No.2/AC/2000) .. Respondent in both Crl.O.Ps.
Prayer in Crl.O.P.No.23235 of 2021: Criminal Original Petition filed under
Section 482 of Cr.P.C., seeking to call for the records related to
C.M.P.No.4718 of 2021 in Spl.C.C.No.2 of 2008, passed by the learned
Special Judge / Chief Judicial Magistrate, Dharmapuri, dated 07.10.2021 and
set aside the same.
Prayer in Crl.O.P.No.23368 of 2021: Criminal Original Petition filed under
Section 482 of Cr.P.C., seeking to call for the records related to
C.M.P.No.4720 of 2021 in Spl.C.C.No.1 of 2008, passed by the learned
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1/11
Crl.O.P.Nos.23235 & 23368 of 2021
Special Judge / Chief Judicial Magistrate, Dharmapuri, dated 07.10.2021 and
set aside the same.
For Petitioner : Mr.T.Mohan
in both the Crl.O.Ps. for Mr.G.Mutharasu
For Respondent : Mr.C.E.Pratap,
in both the Crl.O.Ps. Government Advocate (Crl.Side)
-----
COMMON ORDER
The Crl.O.P.No.23235 of 2021, has been filed seeking to set aside
the order dated 07.10.2021, passed in C.M.P.No.4718 of 2021 in
Spl.C.C.No.2 of 2008, by the learned Special Judge / Chief Judicial
Magistrate, Dharmapuri, dismissing the petitioner's application to recall
P.W.3 Mr.Nagarajan, I.A.S. for further cross examination. Likewise,
Crl.O.P.No.23368 of 2021, has been filed seeking to set aside the order
dated 07.10.2021, passed in C.M.P.No.4720 of 2021 in Spl.C.C.No.1 of
2008, by the learned Special Judge/Chief Judicial Magistrate, Dharmapuri
dismissing the petitioner's application to recall P.W.1 Mr.Nagarajan, I.A.S.
for further cross examination.
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Crl.O.P.Nos.23235 & 23368 of 2021
2. Since the issues involved in both the criminal original petitions are
one and the same and between the same parties, both the Criminal Original
Petitions are heard together and disposed of by means of this Common
Order.
3. The brief facts leading to the filing of these petitions are as follow:
(i) The petitioner has been arrayed as A6 in Spl.C.C.No.2 of 2008 on
the file of the learned Special Judge/Chief Judicial Magistrate, Dharmapuri
and A3 in Spl.C.C.No.1 of 2008 on the file of the learned Special Judge/
Chief Judicial Magistrate, Dharmapuri.
(ii) The petitioner along with other accused stood charge for
offences punishable under various provisions of the Prevention of
Corruption Act, 1988. After framing charges, the trial has commenced and
all the prosecution witness were examined, thereafter, on the side of the
prosecution two documents were marked namely (a) Records handing over
letter dated 11.01.2000, from Divisional Engineer (H&RS), Krishnagiri and
(b) Records handing over letter dated 25.01.2000, from Superintending
Engineer (NH), Salem and those documents viz., Ex.P119 and Ex.P120,
were marked through the Investigating Officer, P.W.20.
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Crl.O.P.Nos.23235 & 23368 of 2021
(iii) Alleging that those two documents were collected in the month
of January, 2000, the prosecution has deliberately suppressed the same and
not filed it along with the final report. On those documents, the petitioner
wants to cross examine P.W.3 the sanctioning authority, P.W.19 the
Preliminary Enquiry Officer and P.W.20, the Investigating Officer in this
case. In such circumstances, the petitioner filed an application under Section
311 Cr.P.C. to recall the sanctioning authority for cross examining them. It is
also stated that in respect of other two witnesses namely P.W.19 and P.W.20
separate petitions were filed.
(iv) The said application was opposed by the prosecution stating that,
the trial has commenced in the year 2010 and all those witnesses were
examined in the year 2016 and the prosecution side evidence was closed in
the year 2016 itself, and the case is posted for defence side evidence. Now
after five years, the present application has been filed only in order to drag
on the proceedings. The respondent has filed all the documents like godown
books, M-Books along with the final report. The latest documents were
marked only to corroborate the evidence already available on record, if not
new documents and there is no suppression of any material on the side of the
prosecution. These documents were also placed before the sanctioning
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Crl.O.P.Nos.23235 & 23368 of 2021
authority, after considering all these documents sanctions was accorded.
Moreover, the accused have extensively cross examined the above
prosecution witnesses and for that purpose he need not be recalled.
4. The trial Court after considering the materials dismissed the
application in respect of P.W.3 the sanctioning authority. However, it is
stated that, the trial Court allowed the application for recalling P.W.19 and
P.W.20. Now challenging the above order, the present petitions have been
filed.
5. Mr.T.Mohan, learned counsel appearing for the petitioner would
vehemently contend that, the documents were marked at the end of the trial,
even though those documents were available with the respondent police,
they have deliberately suppressed the same and they have not produced the
material before the sanctioning authority at the time of granting sanction.
The said documents are crucial documents to prove the innocence of the
petitioner and without considering those important documents, the
sanctioning authority has granted sanction mechanically. Hence, the
sanction itself is improper and based on that improper sanction, cognizance
cannot be taken. In such circumstances only, the petitioner wants to cross
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Crl.O.P.Nos.23235 & 23368 of 2021
examine the sanctioning authority. But the trial Court without considering
the same, merely dismissed the application on the ground that P.W.3 is a
retired I.A.S. officer and a senior citizen and he cannot be called to the Court
frequently and also erroneously held that he was extensively cross examined
on those aspects, when there was no occasion for the sanctioning authority to
look into those documents before granting sanction. In support of his above
contentions, the learned counsel relied upon the following judgments of the
Hon'ble Supreme Court viz.,:
(i) U.T. of Dadra & Nagar Haveli and another Vs. Fatehsinh
Mohansinh Chauhan reported in 2006 (7) SCC 529;
(ii) P.Sanjeeva Rao Vs. State of Andhra Pradesh reported in 2012
(7) SCC 56;
(iii) Natasha Singh Vs. Central Bureau of Investigation reported in
2013 (5) SCC 741 and
(iv) V.N.Patil Vs. K.Niranjan Kumar reported in 2021 (3) SCC 661.
6. Per contra, Mr.C.E.Pratap, learned Government Advocate
(Crl.Side) appearing for the respondent would submit that, documents
marked by the prosecution are not new documents, the prosecution has
already filed the relevant documents like godown books and M-Books and
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Crl.O.P.Nos.23235 & 23368 of 2021
only a detailed enquiry report was marked to corroborate the materials
already produced by the prosecution. These documents were also produced
before the sanctioning authority and after considering all those documents
the sanctioning authority has given sanction. The sanctioning authority was
already extensively cross examined by the defence side in the year 2011
itself. Hence, there is no necessary to recall him who is a retired I.A.S.
officer, and a senior citizen who is residing in Chennai. The Trial Court
after considering all those circumstances, rightly dismissed the application
and there is no reason to interfere with the well considered order of the trial
Court.
7. I have considered the rival submissions and also perused the
records carefully.
8. The object underlying Section 311 Cr.P.C. is to discover the truth,
and Courts should see that best available evidence must be brought to the
Court to prove a fact and for that purpose it can recall the witness for further
examination. It is the duty cast upon the Courts to see as to whether the
witness who is sought to be recalled is essential for arriving a just decision
of the case. A vast discretion conferred upon the Court, however the Court
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Crl.O.P.Nos.23235 & 23368 of 2021
should exercise its discretion judicially. The Court having considered the
material, is of the view that the application has been filed in abuse of process
of law, the discretionary power shall not be exercised, and should not
entertain such applications.
9. The instant case is of the year 2008 and the mater is pending trial
for nearly 13 years, all the prosecution witness were examined in the year
2016 itself and prosecution evidence was closed as early as on 03.03.2016.
At that time, two documents namely, a detailed enquiry report and another
communication of the Divisional Engineer were marked through P.W.20, the
investigating officer on 03.02.2016, and the case is pending trial for defence
evidence. Thereafter, i.e., after five years, the present application has been
filed on 01.08.2021 to recall P.W.3 the sanctioning authority, and another
separate application to recall P.W.19 who was the preliminary enquiry
officer and P.W.20 the investigating officer to cross examine them on those
two documents. However, the trial Court after considering the materials had
allowed the application recalling P.W.19 and P.W.20 and allowed the
defence to cross examine them. However, dismissed the present petition in
respect of recalling of P.W.3 on the ground that he is only the sanctioning
authority, already he has been extensively cross examined by the defence in
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Crl.O.P.Nos.23235 & 23368 of 2021
the year 2011 itself, further he is a retired I.A.S. officer and a senior citizen
and he need not be called to the Court unnecessarily. Now challenging the
said order, the present original petitions have been filed.
10. Admittedly, those documents on which the petitioner wants to
cross examine the prosecution witness were filed in the year 2016, after
keeping quite for 5 years, now in 2021, the present applications have been
filed. Further, the trial Court permitted to recall P.W.19 and P.W.20 who are
witnesses connected to those documents and allowed accused to cross
examine them. So far as this witness is concerned, he is only a sanctioning
authority, now it is stated that at the time of granting sanction all these
documents were also placed before him and after considering these
documents, he granted sanction. From a perusal of the records, it could be
seen that he has been extensively cross examined by all the accused. It is
also stated that these documents were marked only to corroborate
documents already been exhibited before the Court. Considering those
circumstances and the fact that already has been cross examined
extensively, there is no necessity to once again recall him for cross
examination.
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Crl.O.P.Nos.23235 & 23368 of 2021
11. Considering those circumstances, this Court is of the considered
view that these petitions are filed only in total abuse of process of law, only
to drag on the proceedings. The judgments relied upon by the learned
counsel appearing for the petitioner are dealing with the scope of Section
311 Cr.P.C. and is in no way applicable to the facts of these cases, and this
Court is of the considered view that there is no irregularity or illegality in the
orders passed by the trial Court, and find no merit in these quash petitions.
Consequently, these petitions are only liable to be dismissed, accordingly
dismissed. Consequently, the connected miscellaneous petitions are also
closed.
10.12.2021
kk
To
1. The Special Judge / Chief Judicial Magistrate,
Dharmapuri.
2. The Deputy Superintendent of Police, V & A-C,
No.11, Ramasamy Gounder Street,
Kamala Lakshmi Colony, Dharmapuri - 636 701.
Dharmapuri District.
(Cr.No.3/AC/2000)
(Cr.No.2/AC/2000)
3. The Public Prosecutor,
Madras High Court.
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Crl.O.P.Nos.23235 & 23368 of 2021
V.BHARATHIDASAN, J.
kk
PRE-DELIVERY COMMON ORDER in
Crl.O.P.Nos.23235 & 23368 of 2021 and
Crl.M.P.Nos.12735 & 12798 of 2021
RESERVED ON : 06.12.2021
DELIVEREDON : 10.12.2021
https://www.mhc.tn.gov.in/judis
