G.Thamodharan vs The State Rep By Its
2023 Latest Caselaw 8467 Mad

                                                                              Crl.O.P.No.15928 of 2023


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 18.07.2023

                                                       CORAM

                                  THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                             Crl.O.P.No.15928 of 2023
                                                        and
                                             Crl.M.P.No.10079 of 2023

                     G.Thamodharan                                    .. Petitioner

                                                           Vs.

                     The State rep by its
                     The Sub Inspector of Police,
                     Puduchatram Police Station,
                     Namakkal District.                          ... Respondent
                     PRAYER : Criminal Original Petition filed under Section 482 of the
                     Code of Criminal Procedure,             to call for the entire records
                     connected with the Charge Sheet in STC.No.287 of 2023 pending on
                     the file of the Judicial Magistrate No.II, Namakkal and quash the
                     same and transfer the investigation to the some other investigation
                     agency.
                                          For Petitioner    : Mr.S.Varanesh
                                          For Respondent : Mr.A.Damodaran,
                                                           Additional Public Prosecutor




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https://www.mhc.tn.gov.in/judis
                                                                         Crl.O.P.No.15928 of 2023



                                                  ORDER

This petition has been filed seeking to quash the

proceedings in STC No.287 of 2023, pending on the file of the

learned Judicial Magistrate No.II, Namakkal.

2. The petitioner is the defacto complainant in Crime

No.11 of 2023 and he gave the complaint as against five accused

persons. Likewise, a counter complaint was also given against the

petitioner and the same was investigated in Crime No.10 of 2023.

Ultimately, the final report has been filed in both the cases and

insofar as the complaint given by the petitioner, it has been taken

on file in STC No.287 of 2023 as against three accused persons.

Insofar as the complaint given against the petitioner, the same has

been taken on file and it is pending in STC No.288 of 2023.

3. The grievance of the petitioner is that the

complaint was given as against five accused persons and whereas

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15928 of 2023

the final report was filed only as against three accused persons and

no notice was given to the petitioner while dropping two accused

persons in the final report.

4. In the considered view of this Court, the

proceedings in STC Nos.287 and 288 of 2023 must be taken up

together by the Court below. If during the course of enquiry/trial,

materials crop up as against two accused persons whose names have

been left out in the final report, the Court below can always

exercise its jurisdiction under Section 319 of Cr.PC to add them as

accused persons. It will suffice if such a clarity is given and it will

sufficiently take care of the grievance expressed by the petitioner.

5. In the light of the above discussion, the proceedings in

STC No.287 and 288 of 2023 shall be heard together by the learned

Judicial Magistrate II, Namakkal, in line with the judgement of the

Apex Court in [Nathilal and others Vs. State of Uttarpradesh

and another] reported in 1990 SCC Crl.638 followed by this Court

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15928 of 2023

in [Ganesan Vs. The State Rep. by the Inspector of Police,

Kodambakkam Police station, Chennai] reported in 2011 5 CTC

747 at Paragraph Nos.32 and 33 and the same shall be completed

as expeditiously as possible.

32. The said Judgment of the Hon'ble Supreme Court relates to

counter cases. The Hon'ble Supreme Court has held that both the

cases, which are counter cases relating to the same occurrence,

should be tried by the same judge in the following manner:

“We think that the fair procedure to adopt in a matter like the

present where there are cross cases, is to direct that the same

learned Judge must try both cross cases one after the other. After

the recording of evidence in one case is completed, he must hear

the arguments but he must reserve the Judgment. Thereafter he

must proceed to hear the cross case and after recording all the

evidence he must hear the arguments but reserve the Judgment in

that case. The same learned Judge must thereafter dispose of the

matters by two separate Judgments. In deciding each of the cases,

he can rely only on the evidence recorded in that particular case.

The evidence recorded in the cross case cannot be looked into.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15928 of 2023

Nor can the judge be influenced by whatever is argued in the cross

case. Each case must be decided on the basis of the evidence

which has been placed on record in that particular case without

being influenced in any manner by the evidence or arguments

urged in the cross case. But both the Judgments must be

pronounced by the same learned Judge one after the other.”

33. From the above, it is crystal clear that fair trial as guaranteed

under Article 21 of the Constitution of India should be afforded to.

In simple terms, the evidence, both oral and documentary, let in

one case is not evidence in the other case and, therefore, the

same cannot be considered for any purpose in the other case.

Similarly, as laid down by the Hon'ble Supreme Court, there

cannot be a common Judgment delivered in two or more cases.

Even in respect of cross cases arising out of a single occurrence in

respect of each case there has to be a separate Judgment. But,

unfortunately, in the case on hand, the Trial Court has not followed

the said procedure. As I have already stated, the Trial Court has

recorded the evidence in one case and substituted the same in the

other case. This procedure is illegal. Thereafter, the Trial Court has

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15928 of 2023

delivered a common Judgment considering the evidence in

common in respect of the other cases also. Rendering of a

common Judgment that too considering the evidences in common

itself is illegal. For these reasons, I have no hesitation to hold that

the common Judgment delivered in all the four cases is vitiated. In

these circumstances, this Court cannot again consider the

evidence in common and render a common Judgment solely

because all these Appeals are against the common Judgment, as

the same would become another illegality. Therefore, these

Appeals are disposed of on considering the evidence, if any,

available on record in C.C. No. 9 of 2000 alone.

6. This Criminal Original petition is disposed of in the

above terms. Consequently, the connected miscellaneous petition is

closed.

18.07.2023 Index : Yes/No Speaking order:Yes/No Neutral citation:Yes/No rka

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15928 of 2023

To

1. The Sub Inspector of Police, Puduchatram Police Station, Namakkal District.

2. The Judicial Magistrate No.II, Namakkal.

3. The Public Prosecutor, High Court, Madras

https://www.mhc.tn.gov.in/judis Crl.O.P.No.15928 of 2023

N.ANAND VENKATESH, J

rka

Crl.O.P.No.15928 of 2023 and Crl.M.P.No.10079 of 2023

18.07.2023

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