Madras High Court
K.Soundararaj vs State Through on 23 December, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:23/12/2022
PRESENT
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.OP(MD)No.21970 of 2022
K.Soundararaj : Petitioner/Accused
Vs.
State through
The Deputy Superintendent of Police
Vigilance and Anti Corruption,
Tirunelveli district. : Respondent/Complainant
PRAYER:- This criminal original petition has been
filed under section 482 of the Criminal Procedure Code to
call for the records pertaining to the evidence let in
cross examination by the defence witness No.6
Mr.A.Shanmugapandian on its entirely in connection with
the case in Special Case No.62 of 2014 pending on the
file of the Special Court for Exclusive Trial of
Prevention of Corruption Act Cases, Tirunelveli and set
aside the same.
For Petitioner : Mr.R.Anand
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
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2
O R D E R
This criminal original petition is filed seeking in
order to set aside the evidence let in cross examination
by the defence witness No.6 Mr.A.Shanmugapandian on its
entirely in connection with the case in Special Case No.
62 of 2014 pending on the file of the Special Court for
Exclusive Trial of Prevention of Corruption Act Cases,
Tirunelveli.
2.The facts in brief:-
The petitioner is facing the charges for the
offences under sections 7, 13(2) r/w 13(1)(d) of the
Prevention of Corruption Act, 1988 before the trial
court. During the course of trial process, DW6 was
examined on the side of the petitioner as defence witness
and he was also cited as prosecution witness No.5 in the
final report. But the prosecution, without assigning any
reason did not examine him. But he was examined on the
defence side. During the course of the cross examination
by the prosecution, an attempt was made by the Public
Prosecutor to extract the evidence with regard to the
statement that was recorded under section 161(2) Cr.P.C
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by the Investigating Officer, during the course of the
investigation.
3.That was objected by the petitioner stating that
no such evidence is permissible under law; The trial
court stopped recording the evidence of the witness on
the objection made by the petitioner. Over the above
said, this criminal original petition has been preferred.
4.Heard both sides.
5.Perusal of the deposition of DW6 shows that the
prosecution cross examined him with regard to the
statement recorded under section 161(2) Cr.P.C and he
also admitted some portion in the statement. But denied
the other portions. He admitted the signature found in
Ex.P6 and the admitted signature was marked as Ex.P5 and
also in the arrest memo.
6.Further reading of the deposition shows that
since objection has been raised by the accused, further
cross examination with regard to 161(2) Cr.P.C was
stopped by the trial court.
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7.Aggrieved over the above said recording of the
above said evidence, this criminal original petition has
been filed.
8.The learned counsel appearing for the petitioner
would submit that as per the judgment of the Hon'ble
Supreme Court in the case of Mrs.Shakila Khader and
another Vs. Nausheer Cama and others (AIR 1975 SC 1324),
such a course is not available to the prosecution.
9.No doubt that such earlier statement cannot be
used by the prosecution to contradict the evidence, when
he comes for defence side. But however, a portion of the
recording evidence cannot be eschewed or struck off. As
stated by the Public Prosecutor, if the evidence was
admitted illegally, then that evidence need not be
considered by the trial court at the time of judgment.
10.More-over, it is also seen that only a portion
of the evidence is objected by the petitioner, striking
off the portion of evidence is not permissible.
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11.So I am of the considered view that this
petition can be disposed of with an observation to the
effect that the above said portion of the evidence need
not be taken into account by the trial court at the time
of final hearing. But however, the learned counsel
appearing for the petitioner would submit that even the
discretionary power should not be given to the learned
trial Judge. But this sort of argument cannot be advanced
and taken into account.
12.In the result, this criminal original petition is
disposed of, of course with an observation to the effect
that the trial court may not take into consideration the
portion of the evidence recorded, which is not admissible
in law in view of the judgment of the Hon'ble Supreme
Court in the case of Mrs.Shakila Khader and others Vs.
Nausheer Cama and others (AIR 1975 SC 1324) on this
aspect, at the time of final disposal.
23.12.2022
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
1.The Special Court for
exclusive Trial of Prevention of
Corruption Act cases,
Tirunelveli.
2.The Deputy Superintendent of Police,
Vigilance and Anti-Corruption,
Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN ,J
er
Crl.OP(MD)No.21970 of 2022
23/12/2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
