Madras High Court
Mahaveerchand Katariya vs Station House Officer on 3 February, 2022
Crl.R.C.No.58 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.58 of 2022
and
Crl.M.P.No.597 of 2022
1. Mahaveerchand Katariya
2. Kausalya Bai
3. Narendra Kumar
4. Ashok Kumar
5. Aarthi
... Petitioners
Vs.
Station House Officer,
All Women Police Station,
Villupuram,
Crime No.691 of 2007. ... Respondent
PRAYER: The Criminal Revision Petition is filed under Section 397 r/w
401 of the Code of Criminal Procedure, to set aside the judgment and
order passed in Crl.M.P.No.982 of 2021 in C.C.No.02 of 2019 dated
17.12.2021 on the file of the learned Judicial Magistrate, Additional
Mahila Court, Villupuram, dismissing the petition under Section 243 of
the Code of Criminal Procedure.
For Petitioners : Mr.P.Magesh
For Respondent : Mr. S.Sugendran,
Government Advocate(Crl.Side)
1/8
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.58 of 2022
ORDER
This Criminal Revision Petition has been filed by the petitioner/
accused against the dismissal of the petition in Crl.M.P.No.982 of 2021
in C.C.No.02 of 2019 dated 17.12.2021 on the file of the learned Judicial
Magistrate Additional Mahila Court, Villupuram filed by them seeking
permission to examine the defence witnesses and mark the documents.
2. The petitioners are facing trial in C.C.No.02 of 2019 pending on
the file of the learned Judicial Magistrate Additional Mahila Court,
Villupuram for the offences punishable under Sections 498A, 406, 342 of
IPC and Section 4 of the Dowry Prohibition Act on the complaint given
by the daughter-in-law of the first and second petitioners. The de facto
complainant was examined as PW1. She had deposed that she is
suffering from Cervical Spondilitis due to an assault by her husband. It is
the specific case of the petitioners that the de facto complainant has been
suffering from Cervical Spondilitis for a long time and she had been
taking treatment for the same from one Dr.T.K.Muthaiyan, from
Villupuram and Dr.B.Ganesh, from Sowcarpet, Chennai. The first
petitioner had examined himself as DW1 and during such examination,
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Crl.R.C.No.58 of 2022
he sought permission of the court to mark the medical records
(prescription and notes/records of examination done by the said Doctors).
However, the court denied permission stating that they could be marked
only through the authors of the documents. Thereby the petitioners had
filed an Application under Section 243 Cr.P.C. seeking to examine the
medical professionals and mark the documents through them, whereas,
the Trial Court, by a cryptic order, had dismissed the petition stating that
the case has been pending for 14 years.
3. Learned counsel for the petitioners would submit that the
petitioners have never been reason for the delay. He would also submit
that the petitioners, as accused, have a duty to prove their innocence and
the first petitioner examined himself as DW1 and sought permission to
mark the documents, viz., the medical records (prescription and
notes/records of examination done by the said Doctors) whereas the
learned Magistrate denied permission stating that such documents could
be marked only through the authors of the documents. In such
circumstances, it is very much essential in the interest of justice that the
documents should be allowed to be marked through the authors and
thereby the petitioners had filed the petition seeking to mark those
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Crl.R.C.No.58 of 2022
documents through the Doctors, whereas, the Trial Court had dismissed
the same stating that the Case is pending for a long time. He would
further submit that as per section 243(2) Cr.P.C., the Magistrate cannot
deny issuance of summons unless he considers and comes to a conclusion
that the petition with such a plea has been filed for the purpose of
vexation or delay or defeating the ends of justice and if so, the said reason
should be recorded by him in writing and in this case, without
considering the same and without stating any reason, the Magistrate had
dismissed the petition. The learned counsel would further submit that
fair trial includes fair and proper opportunities allowed by law to prove
the innocence of the accused. Adducing evidence in support of the
defence is a valuable right. The learned Magistrate, by denying such a
right, had denied fair trial to the petitioners. He would further submit that
the petitioner is ready to take steps to bring the Doctors for examination
on the next hearing date and the case stands posted to 15.2.2022.
4. Mr.S.Sugendran, learned Government Advocate (Criminal Side)
would submit that the case has been pending for 14 years and this court,
in Crl.O.P.No.5932 of 2019 dated 6.3.2019, has directed to decide the
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Crl.R.C.No.58 of 2022
case without any delay, however, he is unable to state whether the
petitioners are reason for the delay.
5. Heard the learned counsel appearing for the parties and perused
the materials available on record.
6. In this case, the first petitioner had examined himself as DW1.
It is the specific case of the petitioners/accused that the de facto
complainant was suffering from Cervical Spondilitis for a long time and
she has been taking treatment from one Dr.T.K.Muthaian of Villupuram
and Dr.B.Ganesh from Sowcarpet, Chennai. The first petitioner had
earlier attempted to mark those documents by examining himself as
DW1, however, the Trial Court had denied permission stating that they
could be marked only through the authors of the documents. When the
court had denied such permission, it ought to have given an opportunity
to the petitioners to mark the documents through the Doctors, who are the
authors of the same.
7. This Court is of the opinion that the petitioners as accused
should be given an opportunity to prove their innocence by adducing
evidence in support of their defence. Denial of right means denial of fair
trial. The Trial Judge cannot avoid the duty of summoning the witnesses
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Crl.R.C.No.58 of 2022
unless he is of the view that such an Application should be refused for
any of the reasons specified in Sub-section (2) of Section 243 Cr.P.C.
8. In this case, there is no observation by the learned Magistrate
that the petition has been filed for the purpose of vexation or delay or for
defeating the ends of justice and there is no finding with regard to the
same. Further, the prosecution is unable to state whether the accused are
responsible for the delay in the trial.
9. In view of the above, the dismissal order passed in
Crl.M.P.No.982 of 2021 in C.C.No.02 of 2019 dated 17.12.2021 on the
file of the learned Judicial Magistrate Additional Mahila Court,
Villupuram is set aside and the said Application is allowed. The trial
Court shall issue summons for appearance of the witnesses on the next
hearing date viz., on 15.2.2022. If normal functioning of the Courts is
not restored, the court shall fix another date and the petitioners shall
ensure the presence of the witnesses on that particular date. If the court
comes to a conclusion that the petitioners are indulging in dilatory tactics,
the examination of witnesses on the defence shall be closed and they shall
lose their chance of examination of the witnesses.
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Crl.R.C.No.58 of 2022
10. With the above observation, this Criminal Revision case is
allowed. Consequently, connected Criminal Miscellaneous Petition is
closed.
03.02.2022
Note:Issue order copy on 04.02.2022
shk/gba/ssk
To
1. Judicial Magistrate,
Additional Mahila Court,
Villupuram.
2. Station House Officer,
All Women Police Station,
Villupuram,
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.58 of 2022
A.D.JAGADISH CHANDIRA, J.,
shk/gba/ssk
Crl.R.C.No.58 of 2022 and
Crl.M.P.No.597 of 2022
03.02.2022
https://www.mhc.tn.gov.in/judis
