Madras High Court
Kumaran @ Kumaravel vs State Represented By Its on 12 January, 2023
Crl.O.P.(MD)No.760 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.01.2023
CORAM
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.760 of 2023
Kumaran @ Kumaravel ... Petitioner
Vs.
State represented by its
The Inspector of Police,
West Police Station,
Kumbakonam,
Thanjavur District.
(Crime No.258 of 2017) ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to call for the records in Crl.M.P.No.38 of
2019 in Spl.S.C.No.26 of 2019 on the file of the Sessions Judge, Special
Court Exclusive Trial of Cases under POCSO Act, Thanjavur, dated
29.01.2020 and set aside the same.
For Petitioner : Mr.M.Karunanithi
For Respondent : Mr.M.Muthumanikkam
Government Advocate (Crl. Side)
1/8
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Crl.O.P.(MD)No.760 of 2023
ORDER
This Criminal Original Petition filed, under Section 482 Cr.P.C., is
directed against the order passed in Crl.M.P.No.38 of 2019 in
Spl.S.C.No.26 of 2019, dated 29.01.2020, on the file of the Sessions
Judge, Special Court Exclusive Trial of Cases under POCSO Act,
Thanjavur.
2. The petitioner is the sole accused in Spl.S.C.No.26 of 2019 on
the file of the Special Court Exclusive Trial of Cases under POCSO Act,
Thanjavur and is charged for the offences under Section 366 IPC,
Sections 4 and 3(a) of Protection of Child from Sexual Offences Act,
2012 and Sections 3(l)(w) and 3(2)(v) of the Scheduled Caste and the
Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015.
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.3 for
cross examination.
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Crl.O.P.(MD)No.760 of 2023
4. The petitioner's case is that when the witnesses P.W.1 to P.W.3
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
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 Sessions Judge, after enquiry, has
passed the impugned order, dated 29.01.2020 dismissing the said petition
as against the recall of P.W.1 and allowing the said petition as against the
recall of P.W.2 and P.W.3 on cost. 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, who is the victim girl, P.W.2 and
P.W.3 were examined in Chief on 18.11.2019. The learned trial Judge,
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Crl.O.P.(MD)No.760 of 2023
by observing that the petitioner has not mentioned about what are all the
documents and statements not available in his petition, that advocate
boycott is not a sufficient and bonafide reason for the recalling of
witnesses for cross examination, has come to a decision that the
petitioner is not entitled to get the relief and dismissed the petition as
against the recall of P.W.1. 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.
7. In the case on hand, as rightly observed by the learned trial
Judge that P.W.1 was examined in Chief, she was not cross examined on
that day as the defence counsel was not present due to boycott.
8. It is pertinent to note that the petitioner is facing trial for very
serious charges under the POCSO Act. Moreover, there is a legal burden
on the accused to rebut the presumption under Sections 29 and 30 of
POCSO Act. No doubt, there is a statutory bar imposed on Special
Courts by Section 33(5) of POCSO Act to ensure that a child is not
repeatedly called to to testify in the Court.
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Crl.O.P.(MD)No.760 of 2023
9. As rightly observed by the Kerala High Court in Vinith vs, State
of Kerala reported in 2022 Live Law (Kerala) 656, that the bar under
Section 33(5) POCSO Act is not absolute and in appropriate cases, if it is
necessary for the just decision of the case, the child witness can be
recalled.
10. In the present case, according to the prosecution, P.W.1 victim
girl was born on 12.08.1999 and as rightly contended by the learned
counsel for the petitioner, she had now crossed 23 years of age.
11. 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 present petition belatedly, considering
the facts and circumstances of the case and also the fact that the witness
sought to be recalled was not at all cross examined and also taking note
of the fact that the petitioner is facing trial for the serious offences, this
Court is of the clear view that the petitioner should be given one more
opportunity to cross examine the witness. But at the same time,
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Crl.O.P.(MD)No.760 of 2023
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 witness on the day, when the witness is produced before the
Court and if for any reason, the petitioner fails to cross examine the said
witness on that particular day, then he will forfeit his right to cross
examine them.
12. In the result, the Criminal Original Petition is allowed and the
impugned order, dated 29.01.2020 in Crl.M.P.No.38 of 2019 in Spl.S.C.
No.26 of 2019 on the file of the Sessions Judge, Special Court Exclusive
Trial of Cases under POCSO Act, Thanjavur, is set aside and the petition
to recall the witness 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 witness and on further condition that the petitioner
side should cross examine the witness whenever the witness is produced
before the Court and in case of the petitioner's failure to cross examine
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Crl.O.P.(MD)No.760 of 2023
the particular witness, then he will forfeit his right to cross examine the
witness. The trial Court is directed to summon the said witness for the
purpose of cross examination and complete the examination of the said
witness within one month from the date of receipt of copy of this order.
12.01.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
csm
To
1.The Special Court Exclusive Trial of Cases under POCSO Act,
Thanjavur.
2.The Inspector of Police,
West Police Station,
Kumbakonam,
Thanjavur District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.760 of 2023
K.MURALI SHANKAR,J.
csm
Order made in
Crl.O.P.(MD)No.760 of 2023
Dated: 12.01.2023
https://www.mhc.tn.gov.in/judis
