Madras High Court
Siraimeetan vs The State Through on 13 June, 2022
Crl.O.P.(MD) No.8736 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.06.2022
CORAM:
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.O.P.(MD) No.8736 of 2022
and
Crl.M.P(MD) No.5865 of 2022
Siraimeetan,
: Petitioner
Vs
The State through
The Inspector of Police,
Manamadurai Police Station,
Manamadurai,
Sivagangai District.
Crime.No.40 of 2016.
: Respondent
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
this Court to call for the entire records pertaining to the order passed in
Crl.M.P.No.904 of 22 dated 07.04.2022 on the file of the Honourable Chief
Judicial Magistrate Court, Sivagangai and set aside the same and allow this
petition to recall PW-1 to PW-4 for cross examination.
1/8
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Crl.O.P.(MD) No.8736 of 2022
For Petitioner : M/s.Muthukamatchi V,
For Respondent : Mr.R.Suresh Kumar,
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed seeking to set aside the
order passed by the learned Chief Judicial Magistrate Court, Sivagangai, in
Crl.M.P.No.904 of 2022, dated 07.04.2022 and to recall PW-1 to PW-4 for
cross examination.
2.The learned Counsel appearing for the petitioner submitted that the
petitioner has been prosecuted by the respondent police for the offence
punishable under Section 307 of IPC. Hence, a case in S.C.No.118 of 2018,
has been filed before the Chief Judicial Magistrate, Sivagangai. Thereafter,
PW.No.1 to PW.No.4 were examined on 07.12.2018, but they were not cross
examined by the petitioner, for the reason that, while examining the PW-1 to
PW-4, the complainant/Vijayakumar was not examined. But, now the
complainant was examined as PW-5, on 09.03.2022 and he has not supported
the prosecution case and hence treated as hostile. Under these circumstances,
they want to cross-examine the PW-1 to PW-4.
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Crl.O.P.(MD) No.8736 of 2022
3.The learned Government Advocate (Crl.Side) appearing for the
respondent submitted that already PW-1 to PW-4 were examined and the
complainant was also subsequently examined on 09.03.2022, but he was not
supporting the prosecution case and he was treated as a hostile witness.
4.I have considered the submissions made by both the Counsels.
Admittedly, the petitioner was prosecuted by the respondent police, for having
attempted to commit murder upon the complainant, for the offence punishable
under Section 307 of IPC. The case was tried and taken on file by the learned
Chief Judicial Magistrate, Sivagangai, in S.C.No.118 of 2018, and the PW.1
to PW.4 were examined, but at that time, the complainant was not examined.
For that reason, the petitioner/accused had not cross-examined the PW.1 to
PW.4. Now, the complainant was also examined and being not supported the
prosecution case, he was treated as a hostile witness by the prosecution.
Under these circumstances, the petitioner wants to cross-examine the PW-1 to
PW-4
5.With regard to the recalling of the witnesses for cross-examination,
the Hon'ble Supreme Court laid down the principles as follows:
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Crl.O.P.(MD) No.8736 of 2022
'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.
(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
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Crl.O.P.(MD) No.8736 of 2022
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.
(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.
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Crl.O.P.(MD) No.8736 of 2022
(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].'
6.In order to give an opportunity to the petitioner to cross-examine
PW-1 to PW-4, this criminal original petition stands allowed. The petitioner
should cross-examine the witnesses PW-1 to PW-4 on the same date and
further, he has to give a day cost to all the PW-1 to PW4. Accordingly, the
order passed by the learned Chief Judicial Magistrate Court, Sivagangai, in
Crl.M.P.No.904 of 2022, dated 07.04.2022, is set aside. Consequently,
connected miscellaneous petition is closed.
13.06.2022
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
lr
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Crl.O.P.(MD) No.8736 of 2022
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.8736 of 2022
V.SIVAGNANAM, J.
lr
To
1.The Inspector of Police,
Manamadurai Police Station,
Manamadurai,
Sivagangai District.
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.O.P.(MD) No.8736 of 2022
13.06.2022
https://www.mhc.tn.gov.in/judis
