Nagaraj vs State Represented By
2023 Latest Caselaw 10455 Mad

                                                                          Crl.O.P.No.18328 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 16.08.2023

                                                            CORAM

                            THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                                      W.P.No.18328 of 2023
                                                   and Crl MP No.12188 of 2023

                     Nagaraj                                                          .. Petitioner

                                                               Vs.



                     State Represented by
                     Inspector of Police,
                     All Women Police Station,
                     Chengalpattu – 603 001                                          .. Respondent

                     PRAYER : This Criminal Original petition filed under Section 482 of
                     Cr.PC to setaside the order passed by the Sessions Judge, Special Court
                     Exclusive trial of case under POCSO Act, Chengalpattu, in Crl MP No.418
                     of 2023 in Spl SC No.58 of 2021 dated 08.06.2023 by dismissing the
                     petition filed under Section 311 of Crl PC consequently direct the learned
                     court to re-open the complainant side evidence to recall PW1 to PW3 and
                     PW13 for further cross examination.
                                  For Petitioner          : Revathi Sreedhar
                                                            for Mr.R.Sreedhar
                                  For Respondents         : Mr.A.Damodaran
                                                             Additional Public prosecutor

                     1/7
https://www.mhc.tn.gov.in/judis
                                                                          Crl.O.P.No.18328 of 2023



                                                           ORDER

This petition has been filed challenging the order passed by the

Court below dismissing the application filed by the petitioner in Crl MP

No.418 of 2023 by order dated 08.06.2023 for recalling PW1 to PW3 and

PW13 for cross-examination.

2. Heard M/s.Revathi Sreedhar, learned counsel for the

petitioner and Mr.A.Damodaran, learned Additional Public prosecutor

appearing on behalf of respondents.

3. The petitioner is facing trial before the Court below for offence

under Section 376(2), 376(a) (b), 506(ii) IPC r/w. Section 8, Section 4(2),

Section 6(1), Section 10 and Section 12 of the Protection of Child from

Sexual offences Act, 2012 (hereinafter called as the “POCSO Act”). PW1, is

the mother of the victim girl and she was examined in chief and she was

also elaborately cross examined on the side of the petitioner. PW2, who is

the victim girl was examined in Chief on 24.02.2023 and 25.05.2022 and

https://www.mhc.tn.gov.in/judis Crl.O.P.No.18328 of 2023

on both dates, the counsel for the petitioner was very much present in the

Court and inspite of the same, PW2 was not cross examined. Similarly, PW3

was examined in Chief on 25.05.2022 and for some reasons, even PW3,

who is the elder brother of the victim girl was not cross examined.

Thereafter, PW4 to PW12 were examined and ultimately, the investigation

officer [PW13] was examined in chief on 13.03.2023. Even on that day, the

counsel for the petitioner was present before the Court but he did not cross

examine PW13. At this stage, an application was filed under Section 311 of

Cr.PC to recall PW1 to PW3 and PW13 for cross examination. The same

was dismissed by the Court below.

4. In the considered view of this Court, the age of PW2, who is

the victim girl, is 12 years and the age of the brother of the victim girl

(PW3) is 13 years. It is a case of sexual violence and Section 33 (5) of the

POCSO Act, mandates that a child cannot be called repeatedly to testify

before the Court. The Counsel appearing on behalf of the petitioner for the

reasons best known to him did not chose to cross examine PW2 & PW3

even though they were very much present before the Court. Hence, without

any valid reasons, the Court cannot recall a child witness and the Court

https://www.mhc.tn.gov.in/judis Crl.O.P.No.18328 of 2023

below was perfectly right in rejecting the application insofar as PW2 and

PW3 are concerned.

5. Insofar as PW1 is concerned, she is the mother of the victim

girl. She has also been elaborately cross examined on the side of the

petitioner. Without any valid reasons, PW1 cannot be recalled for further

cross examination. Therefore, the Court below was right in rejecting the

application even insofar as PW1 is concerned.

6. The Court below has allowed the application insofar as PW13

(Investigation officer) and has permitted recalling this witness for cross

examination.

7. On carefully reading the order passed by the Court below, this

Court does not find any illegality or infirmity and it does not require the

interference of this Court in exercise of its jurisdiction under Section 482 of

Cr.PC.

8. Before concluding this order, this Court wants to remind that

https://www.mhc.tn.gov.in/judis Crl.O.P.No.18328 of 2023

if a counsel choses not to cross examine a witness, there is a procedure that

has been provided under the code of Criminal procedure under Section

231(2) of Cr.PC in the case of sessions trial and proviso to Section 242(3)

of Cr.PC in a warrant trial before the Magistrate. These provisions enable

the deferment of the cross examination of a witness by filing an appropriate

application before the concerned Court. Unfortunately, all these procedures

have been forgotten over a period of time and the counsel conducting the

Trial do not even assign reasons as to why they did not cross examine the

witness after they are examined in chief and they do not even resort to filing

application for deferment of cross examination. If the counsel for sufficient

reason does not want to cross examine the witness immediately, the Apex

Court has evolved the principles for deferment of cross-examination in

[State of Kerala Vs. Rasheed] reported in 2019 1 MLJ Crl 326. This Court

only hopes that the Trial Court lawyers keep themselves abreast with the

relevant provisions of the procedural laws and also the judgment of the

Apex Court in that regard. Since the counsel who had conducted the Trial

before the Court below was not aware of this, valuable right of his client is

now lost and the petitioner has to only blame his destiny.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.18328 of 2023

9. In the light of the above discussion, this criminal original

petition stands dismissed. Consequently, the connected miscellaneous

petition is closed.

16.08.2023 Index : Yes/No Speaking order:Yes/No Neutral citation:Yes/No rka

To

1. The Sessions Judge, Special Court Exclusive trial of case under POCSO Act, Chengalpattu.

2. State Represented by Inspector of Police, All Women Police Station, Chengalpattu – 603 001

3. The Public Prosecutor Madras High Court, Madras.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.18328 of 2023

N.ANAND VENKATESH, J

rka

Crl.O.P.No.18328 of 2023

16.08.2023

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