Madras High Court
A.Veeraiah vs State Through on 9 January, 2023
Crl.O.P.(MD)No.23057 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.01.2023
CORAM
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.23057 of 2022
and
Crl.M.P.(MD)No.16346 of 2022
A.Veeraiah ... Petitioner
Vs.
State through
The Inspector of Police,
Sivagangai Taluk Police Station,
(Crime No.374 of 2016) ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to call for the records relating to the order in
Crl.M.P.No.6908 of 2022 on the file of the learned Chief Judicial
Magistrate, Sivagangai dated 03.11.2022 and set aside the same as illegal
and allow the petitioner to recall the witnesses P.W.1 to P.W.5 for cross
examination.
For Petitioner : Mr.M.Karunanithi
For Respondent : Mr.M.Muthumanikkam
Government Advocate (Crl. Side)
1/6
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Crl.O.P.(MD)No.23057 of 2022
ORDER
This Criminal Original Petition filed, under Section 482 Cr.P.C., is
directed against the order passed in Crl.M.P.No.6908 of 2022 in C.C.No.
340 of 2022, dated 03.11.2022, on the file of the Chief Judicial
Magistrate, Sivagangai.
2. The petitioner is the sole accused in C.C.No.340 of 2022 on the
file of the Chief Judicial Magistrate, Sivagangai and is charged for the
offence under Section 304(A) IPC.
3. It is not in dispute that the petitioner has filed a petition under
Section 311 Cr.P.C., seeking permission to recall P.W.1 to P.W.5 for
cross examination.
4. The petitioner's case is that when the witnesses P.W.1 to P.W.5
were examined, his counsel was not available, that the above witnesses
are material witnesses, that due to non-availability of the defence
counsel, the said witnesses were not cross examined, that their failure to
cross examine the said witnesses is neither willful nor wanton, that the
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Crl.O.P.(MD)No.23057 of 2022
petitioner will be put to great prejudice, if the said witnesses are not
cross examined and that therefore, the petitioner was constrained to file
the above petition under Section 311 Cr.P.C.
5. No doubt, the respondent has raised serious objections for
allowing the said petition. The learned Magistrate, after enquiry, has
passed the impugned order, dated 03.11.2022 dismissing the said
petition. Aggrieved by the said dismissal order, the accused has come
forward with the present petition invoking Section 482 Cr.P.C. for
setting aside the impugned order.
6. It is not in dispute that P.W.1 to P.W.5 were examined in Chief
on 11.11.2019. The learned trial Judge, by observing that the above
petition is filed with a delay of 3 years, after the examination of the
witnesses P.W.1 to P.W.5 and the said reason is not acceptable one under
law, has come to a decision that the petitioner is not entitled to get the
relief and dismissed the petition. The learned trial Judge has rightly
quoted the judgment of Hon'ble Supreme Court in Vinod Kumar Vs.
State of Punjab reported in 2015 (1) MLJ (Crl) 288.
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Crl.O.P.(MD)No.23057 of 2022
7. In the case on hand, as rightly observed by the learned trial
Judge that P.W.1 to P.W.5 were examined in Chief, but they were not
cross examined on that day, as the defence counsel was not present.
8. As rightly contended by the learned counsel for the petitioner, in
the case on hand, the above petition was not filed for the purpose of
further cross examination, but for cross examination itself. Though the
petitioner is at fault for filing the petition belatedly, considering the facts
and circumstances of the case and also the fact that the witnesses sought
to be recalled were not at all cross examined and also taking note of the
fact that the petitioner is facing trial for the offence under Section 304(A)
IPC, this Court is of the clear view that the petitioner should be given
one more opportunity to cross examine the witnesses. But at the same
time, considering the length of delay and the conduct of the petitioner,
this Court is of the further view that the petitioner must be mulcted with
costs and with further condition that the petitioner/accused, should cross
examine the witnesses on the day, when the witnesses are produced
before the Court and if for any reason, the petitioner fails to cross
examine the said witnesses on that particular day, then he will forfeit his
right to cross examine them.
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Crl.O.P.(MD)No.23057 of 2022
9. In the result, the Criminal Original Petition is allowed and the
impugned order, dated 03.11.2022 in Crl.M.P.No.6908 of 2022 in
C.C.No.340 of 2022 on the file of the Chief Judicial Magistrate,
Sivagangai, is set aside and the petition to recall the witnesses is allowed
on payment of cost of Rs.5,000/- (Rupees Five Thousand Only) to the
credit of Government of Tamil Nadu, CMPRF in IOB, Secretariat
Branch, Chennai-9 (Account No.11720 10000 00070, IFSC Code:
IOBA0001172) and on payment of process fee and batta to the said
witnesses and on further condition that the petitioner side should cross
examine the witnesses whenever the witnesses are produced before the
Court and in case of the petitioner's failure to cross examine the
particular witnesses, then he will forfeit his right to cross examine the
witnesses. The trial Court is directed to summon the said witnesses for
the purpose of cross examination and complete the examination of the
said witnesses within one month from the date of receipt of copy of this
order. Consequently, connected Miscellaneous Petition is closed.
09.01.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
csm
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.23057 of 2022
K.MURALI SHANKAR,J.
csm
To
1.The Chief Judicial Magistrate,
Sivagangai.
2.The Inspector of Police,
Sivagangai Taluk Police Station,
Sivagangai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Order made in
Crl.O.P.(MD)No.23057 of 2022
and
Crl.M.P.(MD)No.16346 of 2022
Dated: 09.01.2023
https://www.mhc.tn.gov.in/judis
