Madras High Court
P.Balaji vs The State Represented By on 26 April, 2022
Crl.O.P.No.9330 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.04.2022
CORAM
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.9330 of 2022
P.Balaji,
S/o.Pitchandi ... Petitioner
Vs
The State represented by,
The Inspector of Police,
All Women Police Station,
Melmaruvathur Police Station,
Melmaruvathur,
Kanchipuram District.
(Crime No.4 of 2016) ... Respondent
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., pleased to
set aside the order passed in Crl.M.P.No.1265 of 2021 in Spl.S.C.No.26 of 2019
dated 21.03.2022 on the file of the Sessions Judge, Special Court for Exclusive
Trial of case under POCSO Act, Chengalpattu.
For Petitioner : Mr.K.G.Senthilkumar
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9330 of 2022
ORDER
The petition has been filed seeking to set aside the order passed in
Crl.M.P.No.1265 of 2021 in Spl.S.C.No.26 of 2019 dated 21.03.2022, on the
file of the Sessions Judge, Special Court for Exclusive Trial of case under
POCSO Act, Chengalpattu.
2. The learned counsel for the petitioner would submit that the petitioner
is facing trial for offences under Section 376(1), 450, 363, 375(b) of I.P.C., r/w
Section 4 and 3(b) of POCSO Act, 2012 in Spl.Case.No.26 of 2019, before the
Special Court, Chengalpattu. The learned counsel for the petitioner would
further submit that the petitioner had filed an application to recall P.W.14 and
P.W.15 for cross-examination. However, the Trial Judge had dismissed the said
application by an order dated 21.03.2022. He would further submit that though
there had been serious lapses on the side of the petitioner, the petitioner is
facing trial for serious offences under POCSO Act, 2012. As per Section 29 of
the POCSO Act, a statutory presumption is available as against the petitioner
and if the petitioner is not permitted to recall and cross-examine the witnesses,
that would cause grave prejudice to the petitioner.
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Crl.O.P.No.9330 of 2022
3. He would further submit that P.W.14 and P.W.15 are the official
witnesses. P.W.14 is the Investigating Officer who had registered the case and
conducted the investigation and P.W.15 is the officer who had filed the final
report before the court concerned and they are very much in service.
4. The learned counsel for the petitioner would submit that earlier the
petitioner had filed an application to recall the officers in Crl.M.P.No.1122 of
2019. The Trial Court by an order dated 07.06.2019 was pleased to allow the
application to recall the witnesses on imposition of cost of Rs.500/- and the
petitioner had also paid the cost. However, P.W.14 was present before the Trial
Court for cross-examination on 02.11.2021 and P.W.15 was present before the
Trial Court for cross-examination on 23.11.2021. The learned counsel engaged
by the petitioner was suffering from Dengue Fever from 01.11.2021 to
24.11.2021, thereby, he was unable to present before the Trial Court to cross-
examine the witnesses.
5. The learned counsel for the petitioner would further submit that the
Courts were also not properly functioning on account of out break of Covid-19
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Crl.O.P.No.9330 of 2022
pandemic and the petitioner was also unable to engage another counsel to cross-
examine the witnesses. He would reiterate that if the petition is allowed and the
witnesses are directed to appear before the Trial Court on a particular date, the
petitioner undertakes to cross-examine them on the same day of their
appearance and the petitioner is also prepared to pay the cost for the appearance
of the witnesses. Thereby, he would seek to set aside the order.
6. The learned Additional Public Prosecutor appearing for the respondent
would submit that P.W.14 was examined in chief on 26.12.2018 and P.W.15
was examined in chief on 27.05.2019. He would further submit that, earlier, the
petitioner had filed an application to recall P.W.14 and P.W.15 and it was also
allowed. When they appeared before the Court, the petitioner failed to cross-
examine them. He would further submit that the Trial Court rightly finding that
the petitioner failed to avail the opportunity and was delaying the trial, had
dismissed the application. He would further submit that the case stands posted
to 27.04.2022, for further arguments.
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Crl.O.P.No.9330 of 2022
7. Heard the learned counsel for the petitioner and the learned Additional
Public Prosecutor for the respondent and perused the materials available on
record.
8. The Trial Court rightly finding that the petitioner has not availed the
opportunity and had willfully failed to cross-examine the witnesses in order to
delay trial and relying upon various judgments of the Hon'ble Supreme Court
particularly the Judgment in the case of Vinoth Kumar Vs the State of Punjab,
had dismissed the application.
9. I do not find any infirmity in the order passed by the learned Trial
Judge. However, taking into consideration the fact that the petitioner is facing
serious charges for the offences punishable under Sections 376(1), 450, 363,
375(b) r/w Section 4 and 3(b) of POCSO Act, 2012 and that there is statutory
presumptions under Section 29 of the POCSO Act, 2012 operating against the
petitioner, this Court is of the opinion that unless PW14 and PW15, the official
witnesses are permitted to be cross-examined, it would amount a case of
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Crl.O.P.No.9330 of 2022
non-rebutal causing grave prejudice to the petitioner. The evidence of PW14
and PW15 is necessary for arriving at a just decision in the case. Hence in the
interest of justice and fair trial this Court is of the further opinion that the
petitioner may be permitted to recall and cross-examine PW14 and PW15.
10. In view of the above, the impugned order passed by the Trial Court
dated 21.03.2022 stands set aside. The Trial Court shall recall PW14 and PW15
for cross-examination on the following conditions:
i. The petitioner shall deposit an amount of Rs.15,000/- before the Trial
Court on the next hearing date.
ii. The Trial Court shall fix a date for appearance of PW14 and PW15 and
the petitioner shall cross-examine the witnesses on the same day of their
appearance.
iii. On failure of the petitioner to cross-examine the witnesses on the same
day of their appearance, he would lose a chance of cross-examination.
iv. The Trial Court shall disburse an amount of Rs.7,500/- to each of the
witnesses on the same day of their appearance.
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Crl.O.P.No.9330 of 2022
v. The petitioner shall give a written undertaking that he would without any
further delay argue the case.
vi. The Trial Judge shall take every effort to dispose the case as
expeditiously as possible.
26.04.2022
Index: Yes/No
Internet:Yes/No
Speaking order/Non-speaking Order
rgm/gsk
Note: Issue Order Copy on 26.04.2022
To
1.The Inspector of Police,
All Women Police Station,
Melmaruvathur Police Station,
Melmaruvathur,
Kanchipuram District.
2.The Sessions Judge,
Special Court for Exclusive Trial of case
under POCSO Act,
Chengalpattu.
3.The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9330 of 2022
A.D.JAGADISH CHANDIRA,J.
rgm/gsk
Crl.O.P.No.9330 of 2022
26.04.2022
https://www.mhc.tn.gov.in/judis
