C.Thangabalu vs State By
2022 Latest Caselaw 1581 Mad

                                                                               Crl.O.P.No.1866 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 01.02.2022

                                                        CORAM:

                                  THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                                CRL.O.P.No.1866 of 2022

                     1. C.Thangabalu
                     2. [email protected]                                   ... Petitioners

                                                        Versus

                     State by
                     Inspector of Police
                     Ethapur Police Station
                     Salem District.
                     [Crime No.380/2016]                                         ...Respondent



                     PRAYER: This Criminal Original Petition has been filed under Section
                     482 of Cr.P.C to set aside the returned docket order dated 20.12.2021 in
                     unnumbered Crl.M.P.Sr.No.870 in S.C.No.72 of 2016 on the file of III
                     Additional District Judge at Salem.


                                      For Petitioners   : Mr.A.Gopalan
                                      For Respondents : Mr.E.Raj Thilak
                                                        Additional Public Prosecutor



                     Page No.1 of 6


https://www.mhc.tn.gov.in/judis
                                                                                   Crl.O.P.No.1866 of 2022


                                                         ORDER

This Criminal Original Petition has been filed to set aside the

returned docket order dated 20.12.2021 in unnumbered

Crl.M.P.Sr.No.870 in S.C.No.72 of 2016 on the file of III Additional

District Judge at Salem.

2. The grievance of the petitioner is that the petitioner filed a

petition under Section 311 Cr.P.C. before the trial Court in unnumbered

Crl.M.P.Sr.No.870 of 2021 to recall P.W.4 and P.W.6 and the same was

returned on 20.12.2021 with the following endorsement:

"Defense side evidence already closed on 10.11.2021. Hence returned,"

3. The contention of the learned counsel appearing for the

petitioner is that P.W.4 and P.W.6 are vital witnesses and they have to be

necessarily cross examined and no prejudice would be caused to anyone

if they are cross examined. He further submitted that the petitioner is

facing charges for the offence under Sections 294(b), 323, 324, 326, 302

r/w Section 34 of I.P.C., which are serious offences and hence prays to

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1866 of 2022

allow this petition.

4. The learned Additional Public Prosecutor submitted that the case

is pending from 2017 and for the past four years, the petitioner adopting

dilatory tactics and dragging the case. He further submitted that already

the petitioner filed a petition under Section 311 of Cr.P.C. in

Cr.M.P.No.376 of 2021,to recall some of the prosecution witness and the

same was dismissed, being aggrieved the petitioners filed

Crl.O.P.No.21256 of 2021 before this Court and the same was allowed.

Now claiming by oversight P.W.6 recall was left in the earlier petition, the

present petition filed to recall P.W.4 and P.W.6 and the trial Court finding

defence side evidence was closed, has rightly rejected the present petition.

5. Heard both sides. Perused the records.

6. Now the case is at the stage of arguments. The trial Court ought

not to have rejected the 311 Cr.P.C. petition on the ground of

maintainability. The 311 Cr.P.C petition can be filed any number of times,

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1866 of 2022

at any stage. In view of the same Trial Court to have considered the

petition on merits and the trial court rejecting the petition on the ground

that the defense side evidence closed, is not proper and acceptable.

7. In such view of the matter, the docket order dated 20.12.2021

passed in Crl.M.P.Sr.No.870 of 2021 in S.C.No.72 of 2016 is set aside,

for hearing of Miscellaneous Petition physical hearing is not necessary,

the trial Court is directed to take up the unnumbered Crl.M.P.Sr.No.870

of 2021 on file, dispose the same on merits on 09.02.2022. The learned

counsel appearing for the petitioner shall inform the petitioner about the

hearing date of the aforesaid petition and the respondent police shall also

appear on 09.02.2022 so that the trial court to dispose of the 311 Cr.P.C.

petition on merits without delay. In the event of case passed the stage

and reserved for Judgment, the trial Court shall proceed and pronounce

the Judgment.

This Criminal Original Petition is disposed of accordingly.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1866 of 2022

01.02.2022

Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order arr/rap Note: Issue Order Copy today (01.02.2022)

To

1. The Inspector of Police Ethapur Police Station Salem District.

2. The III Additional District Judge, Salem.

3. The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.1866 of 2022

M.NIRMAL KUMAR, J.

arr

CRL.O.P.No.1866 of 2022

01.02.2022

https://www.mhc.tn.gov.in/judis