Devaraj … vs State Represented By
2023 Latest Caselaw 393 Mad

Citation : 2023 Latest Caselaw 393 Mad
Judgement Date : 6 January, 2023

Madras High Court

Devaraj … vs State Represented By on 6 January, 2023

                                                                                Crl.OP.No.27751 of 2022

                          IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 06.01.2023

                                                         CORAM

                                  THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

                                                Crl.O.P.No.27751 of 2022
                                              and Crl.M.P.No.17066 of 2022

                  Devaraj                                         …Petitioner

                                                            Vs.

                  State Represented by
                  The Inspector of Police
                  Central Crime Branch
                  Tiruppur
                  (Cr No.20 of 2017)                                   …Respondent

                  PRAYER: Criminal Original Petition is filed under Section 482 of the Code of
                  Criminal Procedure, to call for the records relating to the C.C.No.660 of 2017
                  on the file of the learned Judicial Magistrate No.I, Tiruppur and set aside the
                  order passed in Crl.M.P.No.8966 of 2022 dated 29.08.2022

                                    For Petitioner    : Mr.J.Ranjithkumar
                                    For Respondent : Mr.S.Santhosh
                                                   Government Advocate (Crl side)




                                                         ORDER

https://www.mhc.tn.gov.in/judis Crl.OP.No.27751 of 2022

This Criminal Original Petition has been filed to call for the records

relating to the C.C.No.660 of 2017 on the file of the learned Judicial Magistrate

No.I, Tiruppur and set aside the order passed in Crl.M.P.No.8966 of 2022 dated

29.08.2022.

2.The learned counsel for the petitioner submitted that petitioner

could not examine P.W.1 to P.W.10. The learned trial Judge closed the

evidence. The petitioner was questioned under Section 313 Cr.P.C. and posted

the case for defense witness. On the same date of questioning under Section

313 Cr.P.C petitioner filed petition under Section 311 Cr.P.C. for recalling

P.W.1 to P.W.10. However that petition was dismissed. Therefore, the present

petition.

3.The learned Government Advocate (Criminal side) opposed this

petition on the ground that since the petitioner had not appeared before the

learned trial Judge, the learned trial Judge issued non bailable warrant against

him and the matter is now posted for pronouncing judgment.

https://www.mhc.tn.gov.in/judis Crl.OP.No.27751 of 2022

4.The learned counsel for the petitioner submitted that despite

filing a petition for recalling P.W.1 to P.W.10 even on the date of questioning

under Section 313 Cr.PC., the learned trial Judge after dismissing the petition,

proceeded further with proceedings of defense witness and pronouncing

judgment. Unless petitioner is given an opportunity of cross-examine P.W.1 to

P.W.10 petitioner will be seriously prejudiced. He is prepared to abide by any

condition imposed by this Court.

5.Considered the rival submissions and perused the records.

6.This Court on going through the orders of the learned Judicial

Magistrate No.I, Tiruppur, finds that in a case registered under Section 409 of

I.P.C. against the petitioner, the case was taken on file in CC.No.660 of 2017.

The following witnesses had been examined on the following dates:

i)P.W.1 – 10.05.2018

ii)P.W.2 & P.W.3 – 10.08.2018

iii)P.W.4 - 27.01.2021

iv)P.W.5 – 11.08.2021

https://www.mhc.tn.gov.in/judis Crl.OP.No.27751 of 2022

v)P.W.6, P.W.7 & P.W.8 – 25.08.2021

vi)P.W.9 – 01.09.2021

vii)P.W.10 – 05.08.2022

7.It is also seen from the order that none of these witnesses were cross

examined on the date of chief examination. After a long time and delay, only in

2012 petition for cross examining of all the witnesses has been filed. Only

reason stated by the petitioner for not cross examining these witnesses is that

petitioner was not in possession of documents. However, this reason, according

to the learned Judicial Magistrate No.I, Tiruppur is not sufficient. Finding that

the reason for recalling P.W.1 to P.W.10 after long time is not sufficient and

acceptable and this petition is filed only to cause harassment to the witnesses,

the learned Judicial Magistrate No.I, Tiruppur dismissed the petition.

8.In the light of the reasons given by the learned Judicial Magistrate

No.I, Tiruppur, this Court finds no reason to take a different view of the matter

with regard to the dismissal of the petition. However, it is a case registered

under Section 409 I.P.C. Though the reasons stated by the learned counsel for

https://www.mhc.tn.gov.in/judis Crl.OP.No.27751 of 2022

the petitioner that P.W.1 to P.W.10 had not been cross examined for non-

availability of documents is not acceptable, with a view to give one last

opportunity to the petitioner, this Court is of the view that the order of the

learned Judicial Magistrate No.I, Tiruppur has to be set aside. Thus, this Court

set asides the order dated 29.08.2022 in Crl.M.P.No.8966 of 2022 passed by the

learned Judicial Magistrate No.I, Tiruppur and directs the recall of P.W.1 to

P.W.10 on payment of cost of Rs.5000/- to each witnesses, to be deposited