Ganesh vs Station Officer
2022 Latest Caselaw 6025 Mad

                                                                                    Crl.OP.No.6603 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 24.03.2022

                                                           CORAM

                       THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                    Crl.O.P.No.6603 of 2022


               Ganesh                                                         ... Petitioner

                                                            Vs.

               Station Officer,
               All Women's Police Station,
               Cuddalore.
               (Crime No.7 of 2017)                                           ... Respondent

               PRAYER: This Criminal Original Petition filed under Section 482 of Cr.P.C., to

               set aside the order passed by the learned Session Judge (POCSO Act), Cuddalore

               on 22.12.2020, dismissing the Crl.M.P.No.716 of 2020 in Spl.S.C.No.5 of 2019

               and grant leave for the petitioner to recall the witness PW1 and PW2 for cross

               examination.

                                   For Petitioner    : Mr.R.Udhayakumar

                                   For Respondent : Mr.A.Gokulakrishnan,
                                                    Additional Public Prosecutor.



               1/6


https://www.mhc.tn.gov.in/judis
                                                                                Crl.OP.No.6603 of 2022

                                                       ORDER

This Criminal Original Petition has been filed to set aside the order passed

by the learned Session Judge (POCSO Act), Cuddalore on 22.12.2020, dismissing

the Crl.M.P.No.716 of 2020 in Spl. S.C.No.5 of 2019 and grant leave for the

petitioner to recall the witness PW1 and PW2 for cross examination.

2. The learned counsel appearing for the petitioner would submit that the

petitioner is an accused facing Trial in Spl.S.C.No.5 of 2019 for the offence under

Section 3 & 4 of Protection of Child from Sexual Offences Act, 2012 and 506(1)

of IPC. PW1 and PW2 are important witnesses in this case and their evidence is

essential to arrive at a just decision of the case. However, due to lack of proper

advise, the petitioner had failed to put certain important and vital questions to

PW1 and PW2 and thereby, application has been filed before the Trial Court to

recall the witnesses PW1 and PW2 whereas, the Trial Court had dismissed the

same. He would further submit that PW1 is not a “child” as on date and the bar

under Section 33(5) of POCSO Act will not be applicable against the petitioner.

Learned counsel would further submit that the petitioner is facing serious charges

https://www.mhc.tn.gov.in/judis Crl.OP.No.6603 of 2022

under the POCSO Act and there are statutory presumptions against him under

Section 29 of the Act. The petitioner has to take every step to rebut the

presumptions as against him. If one opportunity is given to the petitioner, he will

cross examine PW1 and PW2 on the same day of the appearance. If the petitioner

is not permitted to recall and cross examine PW1 and PW2 he will be put to

predicament. In support of his contention, he relied upon the judgment of this

Court in Crl.O.P.No.4131 of 2022 dated 07.03.2022.

3. Mr.A.Gokulakrishnan, learned Additional Public Prosecutor for the

respondent would submit that the the petitioner is an accused and the witnesses

PW1 and PW2 were examined in chief on 07.06.2018 and this petition has been

filed belatedly after three years. He would further submit that earlier, the petitioner

had filed an application to recall PW2 and the same was allowed. The petitioner

had cross examined PW2 and once again he had filed this second application to

recall PW2.

4. He further submits that the trial Court taking into consideration the

mandate of the order passed by the Hon'ble Apex Court in the case of Vinoth

https://www.mhc.tn.gov.in/judis Crl.OP.No.6603 of 2022

Kumar Vs. State of Punjab, had dismissed the application.

5. At this juncture, learned counsel for the petitioner would reiterate that if

one chance is given to the petitioner to recall PW1 who has not been cross

examined so far and some cost is imposed, the petitioner is prepared to pay the

amount to the witnesses and the petitioner undertakes to cross examine the

witnesses on the same day of their appearance before the trial Court.

6. Heard the learned counsel appearing on either side and perused the

materials placed on record.

7. The Trial Court taking into consideration the judgment of Hon'ble Apex

Court in the case of Vinoth Kumar Vs. State of Punjab, had dismissed the

application. This Court does not find any infirmity in the order passed by the Trial

Court. However, in this case, it appears that evidence of PW1 is essential to arrive

at a just decision of the case. If the petitioner is not allowed to cross examine the

PW1, it would be a case of no defence resulting in grave prejudice to the

petitioner. Further, as per the Section 29 of POCSO Act, unless the contrary is

https://www.mhc.tn.gov.in/judis Crl.OP.No.6603 of 2022

proved, it is presumed that the accused has committed or abetted or attempted to

commit offence as the case may be. A heavy burden is cast on the petitioner to

rebut the presumptions, which operates against him. It is stated that the PW1 is

now not a child. This Court in Crl.O.P.No.4131 of 2022 in the case of

“S.Ganeshan Vs.State of Tamil Nadu” dated 07.03.2022, in similar

circumstances had directed recall of the witnesses. Whereas, in respect of

PW2/mother of the victim, already one chance had been given to the petitioner to

recall and she had been cross examined.

8. In view of the above, this Court is of the opinion, the petitioner may be

permitted to recall PW1 alone on imposition of cost and terms. The petitioner is

permitted to file recall application on the next hearing to recall PW1. On such

application, the Trial Court shall fix a date for appearance of PW1 and the

petitioner shall cross examine on the same day of her appearance before the Trial

Court. At time of filing recall application, the petitioner shall deposit the amount

of Rs.5,000/- as costs and the amount shall be disbursed to the witness on the day

of her appearance. In the event the petitioner fails to cross examine on the day of

her appearance, the petitioner shall lose his chance of cross examining PW1.

https://www.mhc.tn.gov.in/judis Crl.OP.No.6603 of 2022

A.D.JAGADISH CHANDIRA,J.

shk

9. In view of the above, this Criminal Original Petition stands Partly

allowed.

24.03.2022 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order

Note: Issue order copy on 25.03.2022

shk/sai

To

1.The Session Judge (POCSO Act), Cuddalore

2.The Station Officer, All Women's Police Station, Cuddalore.

3.The Public Prosecutor, High Court of Madras.

Crl.O.P.No.6603 of 2022

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