Madras High Court

M.Velladurai vs State Represented By on 21 June, 2022

                                                                           Crl.O.P.(MD) No.10986 of 2022


                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 21.06.2022

                                                    CORAM:

                                  THE HONOURABLE MR. JUSTICE V.SIVAGNANAM

                                          Crl.O.P.(MD) No.10986 of 2022


                1. M.Velladurai,

                2. Maridurai,
                                                                                     : Petitioners

                                                       Vs

                State represented by
                The Inspector of Police,
                Meignanapuram Police Station,
                Thoothukudi District.
                (Crime No. 167 of 2012).
                                                                                   : Respondent


                PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying

                this Court to set aside the order passed in the recall petition in Cr.M.P. No.

                1263/2022, Dated. 12.04.2022 on the file of the Principal Disrict Court,

                Thoothukudi within stipulated period and proceed with case further.




                1/10

https://www.mhc.tn.gov.in/judis
                                                                             Crl.O.P.(MD) No.10986 of 2022


                                      For Petitioner    : M/s.Suyambilinga Bharathi K,
                                      For Respondent    : Mr.R.Suresh Kumar,
                                                        Government Advocate (Crl.Side)

                                                     ORDER

This criminal original petition has been filed challenging the order

passed in Cr.M.P. No. 1263/2022, dated 12.04.2022, on the file of the

Principal Disrict Court, Thoothukudi.

2.The learned Counsel appearing for the petitioners submitted that the

petitioners were prosecuted by the respondent police for the offences under

Sections 294(b), 302 and 506(2) of IPC, in S.C.No.240 of 2015, on the file of

the learned II Additional District and Sessions Judge, Thoothukudi. In this

Case, totally twenty prosecution witnesses had been examined. The

petitioners have filed an application under Section 311 of Cr.P.C in

Crl.M.P.No.1263 of 2022 to recall the evidence of PW-3 to PW-5 and PW-8 to

PW-19 for cross-examination. But, the said application was dismissed by the

trial Court, on the ground that the petition has been filed after three years

from their examination regime. All the witnesses were examined on

14.08.2018 and 17.09.2018. On the ground of delay in filing the said

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.10986 of 2022

application for recalling the witnesses and sufficient opportunities have been

given to the accused persons, but they failed to cross-examine them. Hence,

the petitioner pleaded to allow this petition to give a fair chance to the

petitioners to defend their case.

3.The learned Government Advocate (Crl.Side) appearing for the

respondent submitted that all the witnesses were examined. Now, the case is

posted for examination of the defence witnesses, on 27.06.2022. Already,

sufficient time had been granted to the petitioners, but they failed to cross-

examine the witnesses. Apart from this, the petitioners were absent from

appearance before the Court. Hence, Non-Bailable Warrant had been issued

on 08.10.2018. Thereafter, A1 and A2 surrendered before the Court below, on

23.11.2018 and then, the warrant was recalled. But, the non-bailable warrant,

which was issued against the third accused is pending. Therefore, the case

was split up on 03.01.2022 and split up the case in S.C.No.1 of 2022. Under

these circumstances, the petitioners filed the said application to recall the

above said witnesses. Since, there is no merit in this case, he pleaded to

dismiss this petition.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.10986 of 2022

4.Considering the matter in the light of the submissions made by both

the counsels and on a perusal of the records, reveal the fact that the petitioners

along with one Sivakumar were prosecuted for having caused murder of

Velathurai, for the offences under Sections 294(b), 302 and 506(2) IPC by the

respondent police in S.C.No.240 of 2015, on the file of the learned II

Additional District and Sessions Judge, Thoothukudi. Further, one another

juvenile accused also involved in this Case, for whom criminal proceeding is

conducted before the Juvenile Court. In this case, charges have been framed

against the petitioners for the offences under Sections 294(b), 302 and 506(2)

IPC. After framing of charges, witnesses PW-1 to PW-5 were examined on

14.08.2018. Then, the remaining witnesses PW-8 to PW-19 were examined

on 17.09.2018. On that date, since the petitioners' Advocate is not available,

they have not cross-examined the witnesses. Further, the record reveals that

the petitioners were absent from appearance on 08.10.2018. Hence, the trial

Court issued a non-bailable warrant for securing the accused persons. Then,

the case was posted on 29.10.2018 and thereafter, on 23.11.2018. After that,

the petitioners surrendered before the Court below and the Non-Bailable

Warrant issued against them, has been recalled. But, the third accused did not

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.10986 of 2022

surrender before the Court below. Therefore, the case as against the third

accused was split up in S.C.No.1 of 2022, as per the order of the learned

Pricipal District and Sessions Judge, on 03.01.2022. Thereafter, the trial has

been conducted against the petitioners alone and further, witness LW-12, who

conducted the post-mortem and LW-14 to LW-16, LW-19 were examined as

PW-16 to PW-19. Now, after completion of prosecution witnesses, the case is

posted for defence witnesses, on 27.06.2022.

5.No doubt, the petitioners have not cross-examined the witnesses, even

after completion of chief examination for want of their learned Counsel.

Thereafter, they have also not immediately taken any steps to recall the

prosecution witnesses for cross-examination. Only after completion of the

prosecution witnesses alone, they have filed a petition before the trial Court.

6.Admittedly, in criminal proceedings, a fair opportunity has to be

given to the accused to defend his case to arrive at a just decision. But, in this

case, the petitioners were not cross-examined the prosecution witnesses.

Under these circumstances, to defend their case, they have to cross-examine

the witnesses.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.10986 of 2022

7.With regard to the recalling of witnesses for cross-examination, the

Hon'ble Supreme Court laid down the principles as follows:

'In Rajaram Yadav's case the Supreme Court has summed up the legal position relating to Section 311 Cr.P.C and has enumerated the following principles which will have to be borne in mind by the Courts:

(a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

(b) The exercise of the widest discretionary power under Section 311 Cr.P.C should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

(c)If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re- examine any such person.

(d)The exercise of power under Section 311 Cr.P.C should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

(e)The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.10986 of 2022

(f)The wide discretionary power should be exercised judiciously and not arbitrarily.

(g)The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

(h)The object of Section 311 Cr.P.C simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

(i)The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

(j)Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

(k)The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

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(l)The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

(m)The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

(n)The power under Section 311 of Cr.P.C must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right [Rajaram Yadav v State of Bihar, AIR 2013 SC 3081 : 2013 Cr LJ 3777 (SC) : (2013) 14 SCC 461].'

8.Considering the factual and legal position of this case, in order to

give a fair chance to the accused persons to cross-examine the witnesses to

arrive at a just decision and also the Constitution of India guaranteed a fair

opportunity for the accused person in criminal proceedings to cross-examine

the witnesses on a condition that all the witnesses have to be recalled in a

single day and the petitioners without getting any adjournment, has to cross-

examine all the witnesses on a single day.

https://www.mhc.tn.gov.in/judis Crl.O.P.(MD) No.10986 of 2022

9.Therefore, the learned Counsel appearing for the petitioner restricted

to recall the witnesses PW-3 to PW-5, PW-8, PW-10, PW-12 to 16, PW-18

and PW-19 and not willing to examine PW-6, PW-7, PW-11 and PW-17.

Under these circumstances, the impugned order passed in Cr.M.P. No.