Madras High Court
M.Palani vs The State Rep. By on 31 October, 2022
Crl.O.P.(MD) No.18591 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.10.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.O.P(MD)No.18591 of 2022
and
Crl.M.P(MD)No.12496 of 2022
M.Palani ...Petitioner
vs
1.The State Rep. by
The Sub Inspector of Police,
Seevalaperi Police Station,
Tirunelveli District.
(Cr.No.94 of 2021)
2.Subramaniyan ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to set aside the evidence of P.W.1 to P.W.5 in S.C.No.528 of
2021 pending on the file of the learned III Additional District and
Sessions Judge, Tirunelveli in the light of the order passed by this
Court in Crl.R.C(MD)No.848 of 2021, dated 12.09.2022 and
consequently, to direct the above said learned Judge to examine the
P.W.1 to P.W.5 afresh.
For Petitioner : Mr.R.Anand
For R1 : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
For R2 :Mr.R.Karunanidhi
1/14
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Crl.O.P.(MD) No.18591 of 2022
ORDER
This Criminal Original Petition has been filed to set aside the
evidence of P.W.1 to P.W.5 in S.C.No.528 of 2021 pending on the file
of the learned III Additional District and Sessions Judge, Tirunelveli,
in the light of the order passed by this Court in Crl.R.C(MD)No.848 of
2021, dated 12.09.2022 and consequently, to direct the learned Judge
to examine the P.W.1 to P.W.5 afresh.
2.Heard the learned Counsel for the Petitioner, learned
Additional Public Prosecutor appearing for the first Respondent and
the learned Counsel for the second Respondent.
3.The learned Counsel for the Petitioner submitted that the
murder case arose out of a group clash in Seevalaperi Village between
two communities, Yadavar and Thevar. Both communities were
worshipping the Sudalaimadan Temple, where, there was a gentleman
agreement that within the temple premises, Yadavars can sell
eatables and outside the temple premises, only Thevars can sell
eatables and other things. During COVID-19 lackdown, the temple
was closed. In the year 2021, after COVID-19 restrictions were
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Crl.O.P.(MD) No.18591 of 2022
partially raised, three people belonging to Yadavar community sold
eatables outside the temple premises, which was objected to by A1 to
A4.
4.As per the prosecution case, A1 to A4 in a drunken mood,
armed with Aruval brutally attacked Chidambaram, the deceased and
the injured, Nataraja Perumal. On seeing this, others also came
rushing and prevented further attack. On the way to hospital,
Chidambaram died. After registration of FIR, investigation had been
completed and final report laid before the Court concerned. Now the
case had come up for trial in S.C.No.528 of 2021 on the file of the III
Additional District and Sessions Judge, Tirunelveli.
5.As per FIR, there were only six people. Subsequently, due to
the pressure tactics played by the relatives of the deceased, 11 more
were added as accused. 17 people are now facing trial. The family of
the deceased had moved this Court by way of a Writ Petition, thereby,
sought appointment of Special Public Prosecutor. As per the order of
this Court, Special Public Prosecutor was appointed. Subsequently, at
the instance of the Special Public Prosecutor, the S.H.O. of the Police
Station concerned, who had to instruct the Special Public Prosecutor,
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Crl.O.P.(MD) No.18591 of 2022
had given instruction regarding the motive of the murder, whereby,
the documents from the HR & CE Department were sought to be
marked. The Special Public Prosecutor had filed Crl.M.P.No.7324 of
2022 under Section 231(1) of Cr.P.C., which was objected by the
learned Counsel for the Accused stating that those were not part of
the documents given under Section 207 Cr.P.C., and after
commencement of the trial, the accused are prejudiced in the
principles of fair trial. Ignoring the objection by the learned Counsel
for the Accused, the learned III Additional District and Sessions Judge,
Tirunelveli, had allowed the Petition.
6.Aggrieved by the same, the accused had moved this Court in
Crl.R.C.(MD)No.848 of 2022 and this Court by order, dated
12.09.2022 had partly allowed the same. Before that, the prosecution
had already examined upto five witnesses. The witnesses had
deposed about the documents that were sought to be marked by the
prosecution regarding the document issued by the HR & CE
Department, which are not part of the statements already recorded by
the Investigation Officer under Section 161 Cr.P.C. Therefore, the
learned Counsel for the Accused objected to the same. In spite of the
objection of the learned Counsel for the Accused, the learned III
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Crl.O.P.(MD) No.18591 of 2022
Additional District and Seasons Judge, Tirunelveli, had recorded the
deposition of the witnesses. Aggrieved by the same, A2 had filed this
Petition under Section 482 Cr.P.C., seeking to quash the deposition of
PW-1 to PW-5.
7.The learned Counsel for the Petitioner invited the attention of
this Court to the order passed by the learned Single Judge of this
Court in Crl.R.C.(MD)No.848 of 2021. The relevant paragraph of
which reads as follows:
"20. The prosecution is permitted to mark the 2 passports given
to both the women police constables during investigation and to mark
documents regarding Crime Nos.161 of 2018 and 162 of 2018 and
CSR.Nos.41 of 2016 and 42 of 2016 and to examine 2 of the erstwhile
investigation officers, SI of police, with regard to the above
documents. With regard to the examination of the official from the HR
& CE Department and with regard to the marking of the documents
regarding the temple administration, the petition stands dismissed.
21. With the above modification, this Criminal Revision Case is
partly allowed. Consequently, connected Miscellaneous Petitions are
closed."
8.Further, he invited the attention of this Court to the deposition
of PW-1 to PW-5. Instead of narrating the occurrence, they had given
deposition regarding the origin of the motive by attempting to mark
the HR & CE documents subsequently. Therefore, he seeks to quash
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Crl.O.P.(MD) No.18591 of 2022
the evidence of PW-1 to PW-5, which was recorded before the
Crl.R.C., was partly allowed.
9.He further submitted that the order of the learned Single
Judge of this Court clearly dismissing the order passed by the learned
Sessions Judge by stating that only documents regarding Cr.Nos.161
and 162 of 2018 and marking of passports given to woman Constables
during investigation and marking of CSR Nos.41 and 42 of 2016 and
to examine erstwhile Investigation Officers with regard to the above
documents. With regard to the officials from HR & CE Department
and with regard to the marking of documents regarding Temple
administration, the Petition stands dismissed. While so, the
deposition of PW-1 to PW-5 containing the subject matter of HR & CE
Department and attempted marking of documents has to be eschewed
(quashed)
10.The learned Additional Public Prosecutor submitted that the
witnesses PW-1 to PW-5 had deposed evidence naturally, as per the
occurrence and the material objects were marked, which was prior to
207 Cr.P.C., documents, that were granted to the accused. As per 161
Statement, that was already recorded, there is nothing for the
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Petitioner to object regarding deposition of PW-1 to PW-5.
11.It is the contention of the learned Additional Public
Prosecutor that their only intention is to delay the trial. None of the
witnesses had been cross examined. It is the further submission of
the learned Additional Public Prosecutor that on 02.09.2022, PW-1
and PW-3 were alone examined and 05.09.2022, PW-4 and PW-5 were
alone examined. Till 27.10.2022, 16 witnesses had been examined.
Till date, the accused had not cross examined any of the witnesses.
12.Also, the learned Additional Public Prosecutor submitted that
one of the accused had sought transfer by filing a Petition before this
Court, which was also dismissed. Therefore, the learned Additional
Public Prosecutor submitted that the appearing Counsel for the
Accused can cross examine the witnesses regarding the new facts,
that they had stated in their deposition. The accused cannot control
the deposition of witnesses or the Court proceedings. Individual
witnesses are free to express themselves while deposing as witnesses.
They cannot be compelled to shut or restrict either by the Court or by
the prosecution or by the accused. They are free to express before
the Judge concerned regarding the circumstances and other related
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Crl.O.P.(MD) No.18591 of 2022
matters, which are to their own volition natural to their deposition. If
the accused feel that those facts were are not earlier stated by Police
Officers, they are within their rights under the principles of fair trial
to cross examine the witnesses regarding improvisation in their
deposition.
13.The learned Counsel for the second Respondent/De-Facto
Complainant submitted that this Petition is nothing but ploy adopted
by the accused to drag on the proceedings. It is the submission of the
learned Counsel for the second Respondent that there is no such
gentlemen agreement, as stated by the Petitioner herein between
Yadhavars and Thevars regarding the management of the Temple.
The Temple is run by the HR & CE Department, but managed by
Yadhavars. There had been dispute and skirmishes regarding the
same between two groups, which resulted in filing of C.S.R.Nos.41
and 42 of 2016 and registration of FIRs in Cr.Nos.161 and 162 of
2018. Therefore, those are naturally spoken to by the witnesses by
their own volition. Also, it is the further submission of the learned
Counsel for the second Respondent/De-Facto Complainant that he had
filed a Writ Petition for appointment of Special Public Prosecutor,
which was allowed. Subsequently, Crl.O.P.(MD)No.12668 of 2022
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Crl.O.P.(MD) No.18591 of 2022
was filed. Subsequently, one of the accused, A9 filed filed Crl.O.P.
(MD)No.13097 of 2022 seeking transfer of the case trial from the file
of the learned III Additional District and Sessions Judge, Tirunelveli,
to any other Court in which, the learned Single Judge of this Court, by
order dated 21.07.2022 dismissed the Petition by observing as
follows:
"7. A transfer should not readily be granted for any fancied
notion of a litigant and it should be granted to ensure that the
applicant gets fair and impartial justice. Mere presumption or
possible apprehension are not sufficient only good and sufficient
grounds may be considered. Further, transfer of the case from one
court to another indirectly casts doubt on the competency and
integrity of the judge from whom the case is sought to be
transferred. Therefore, the apprehension expressed by the learned
counsel for the petitioner is not reasonable and every apprehension
does not have a ground to transfer the case. It should be a
reasonable apprehension. I find no material to substantiate the fear
expressed by the petitioner and no merit in the transfer petition."
14.Also, he had relied upon another order passed by this Court
in Crl.O.P.(MD)No.10840 of 2022, dated 16.09.2022. The relevant
paragraph of which reads as follows:
"6.Considering the rival submissions and on perusal of the order
passed by the learned trial Judge, the Chief Judicial Magistrate,
Sivagangai, when the Hon'ble Supreme Court had laid down the
guidelines in Vinod Kumar's case (cited supra), where the Hon'ble
Supreme Court had deprecated the practise of recalling the witnesses
at the convenience of the accused, thereby delaying the trial, which is
anathema to the Constitutional provisions of speedy trial, particularly
in Criminal Cases and is a guaranteed right to the citizen of India by
the Constitution of India, the very same provision is taken for granted
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Crl.O.P.(MD) No.18591 of 2022
by the accused, who happened to be the citizen of India under the
“principle of fair trial”, thereby causing harassment to the witnesses,
who are also the citizen of India.
7.The Hon'ble Supreme Court had repeatedly issued the
guidelines to the trial Courts not to encourage the dilatory tactics
either by the accused or by the Counsels and in the Vinod Kumar's case,
the Hon'ble Supreme Court had issued directions to the High Courts to
circulate the judgment to each of the trial Judges irrespective of the
cadre right from Judicial Magistrate up to District Sessions Judge.
Therefore, the trial Judges are aware of the guidelines issued in this
landmark judgment. Even after the Supreme Court warning that action
will be initiated against the trial Judges for prolonging the trial and
encouraging the delaying tactics, the Counsels are ignoring the law laid
down by the Hon'ble Supreme Court. As per Article 142, the law laid
down by the Hon'ble Supreme Court is law of the land. The trial Judges
are bound by the same. When they violate the guidelines, the trial
Judges are landing in trouble. Ignoring all these provisions, it is noted
that invariably the Petitions are filed before the Trial Court
lackadaisically without any reason, which is deprecated by the Hon'ble
Supreme Court in the very same Judgment. The reason mentioned by
the learned Counsel for the Petitioner cannot at all be accepted when
the trial Judge had rejected the Petition in the light of the reported
ruling of the Hon'ble Supreme Court in Vinod Kumar's case. Therefore,
it is not an appropriate case to invoke Section 482 of Cr.P.C."
15.On consideration of the rival submissions of the learned
Counsel for the Petitioner, the learned Additional Public Prosecutor
and the learned Counsel for the second Respondent, the submission of
the learned Counsel for the Petitioner is found justified in the light of
the order passed by this Court in Crl.R.C.(MD)No.848 of 2022,
wherein, it is specifically ordered that the prosecution cannot mark
any document regarding HR & CE Department. By the time Crl.R.C.,
was allowed, already the learned Sessions Judge had proceeded with
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the examination of the prosecution witnesses, PW-1 to PW-5.
16.That cannot be a sole ground to eschew the entire evidence
of PW-1 to PW-5. As rightly pointed out by the learned Additional
Public Prosecutor, the Counsels, who representing the Accused, are
within their right to cross examine the witnesses regarding the
improvements made by them, which were not part of the statements
recorded by the Investigation Officer during investigation under
Section 161 Cr.P.C. It is pointed by the learned Additional Public
Prosecutor that none of the witnesses had been cross examined.
17.In the light of the reported ruling of the Honourable
Supreme Court in the case of Vinoth Kumar vs State of Punjab,
reported in (2015) 1 MLJ (Crl.) 288 (SC), if the accused choose not
to cross examine, the Sessions Court cannot recall witnesses
mechanically and leniently. Here is a case, where, the Petitioner, A2,
had come before this Court that there are facts, which are new, which
were not part of the 161 statements. That part of the deposition is
found objectionable. Therefore, the learned III Additional District and
Sessions Judge, Tirunelveli, is granted the liberty to consider eschew
of that portion only after hearing the prosecution and the learned
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Counsel for the Accused either before the cross examination of the
witnesses or at the conclusion of the trial. The learned counsel for the
Accused can also furnish written arguments regarding the same. It is
pointed out that the learned III Additional District and Sessions Judge,
Tirunelveli, can, as an exemption, allow the Petitioner and other
accused to cross examine the witnesses in this particular case. Within
the limited time, if they choose not to cross examine, the III Additional
District and Sessions Judge, Tirunelveli, is within his power and
discretion, to reject the recall of the witnesses one by one. It should
be not be prolonged at the whims and fancies of the appearing
Counsels.
18.With the above directions, this Criminal Original Petition is
disposed of. Consequently, connected Miscellaneous Petition is
closed.
Index:Yes/No 31.10.2022
cmr
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Crl.O.P.(MD) No.18591 of 2022
To
1.The III Additional District and Sessions Judge,
Tirunelveli.
2.The Sub Inspector of Police,
Seevalaperi Police Station,
Tirunelveli District.
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Crl.O.P.(MD) No.18591 of 2022
SATHI KUMAR SUKUMARA KURUP, J.
cmr
CRL.O.P(MD)No.18591 of 2022
31.10.2022
https://www.mhc.tn.gov.in/judis
