Madras High Court
M.David Raj vs The State Represented By on 8 January, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.O.P.(MD) No.154 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2024
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.O.P (MD) No.154 of 2024
and
Crl.M.P.(MD)No.106 of 2024
M.David Raj ... Petitioner
Vs.
The State represented by
The Sub Inspector of Police
Thiruthangal Police Station,
(Crime No.552 of 2015 ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, to
call for the records relating to the Petition and order in Crl.M.P.No.7225 of
2023 dated 05.12.2023 in C.C.No.738 of 2017 on the file of the learned
Judicial Magistrate No.II, Sivakasi, set aside the same and to allow this
Criminal Original Petition.
For Petitioner : Ms.Mahalakshmi
For Respondents : Mr.B.Thanga Aravindh
Government Advocate (Crl. side)
1/6
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD) No.154 of 2024
ORDER
This Criminal Original Petition has been filed to quash the
order passed in Crl.M.P.No.7225 of 2023 in C.C.No.738 of 2017 dated
05.12.2023 on the file of the learned Judicial Magistrate No.II, Sivakasi.
2. It is the submission of the learned Counsel for the Petitioner
that the learned Judicial Magistrate No.II, Sivakasi, had dismissed the
Petition to recall P.W.1 and P.W.2, and thereby denied an opportunity to
the Petitioner / Accused. Further, the learned Counsel for the Petitioner
submits that the case arose out of direction given by the learned Judicial
Magistrate No.II, Sivakasi, while disposing of the case under Section 138 of
the Negotiable Instruments Act. Therefore, some questions were left out
prior to cross examination regarding the earlier proceedings under Criminal
Appeal. Therefore, the Petitioner / Accused had filed above Crl.M.P.No.
7225 of 2023.
3. The learned Judicial Magistrate No.II, Sivakasi, had refused
to grant permission to the Petitioner. Aggrieved by the order of the learned
Judicial Magistrate No.II, Sivakasi, the Petitioner had approached this
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Court, seeking to set aside the order passed by the learned Judicial
Magistrate No.II, Sivakasi, in Crl.M.P.No.7225 of 2023, dated 05.12.2023.
4. The learned Government Advocate (Crl.Side) vehemently
objects to the line of arguments of the learned Counsel for the Petitioner
stating that the Petitioner had two other similar cases, pending against him.
This is the second Petition to recall P.W.1 and P.W.2. Also, in criminal
trials, when the witnesses are available before the Court, the learned
Counsel for the Accused shall cross-examine them then and there. Here, the
learned Counsel for the Accused had not cross-examined the witnesses then
and there. Therefore, the order passed by the learned Judicial Magistrate
No.II, Sivakasi, is just and appropriate and does not warrant any
interference.
5. On perusal of the order passed by the learned Judicial
Magistrate No.II, Sivakasi, it is found that the Petitioner herein as an
Accused had delayed the trial by four years. After having exhausted the
right of cross examination, by cross examining the witnesses, once again,
recalling for the very same, questions is only to protract the proceedings and
hence, dismissed the Petition.
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6. In Criminal trial, when the witnesses are available before the
Court, it is the general principle that the Accused shall cross examine the
witnesses then and there. Only in rare cases, the cross examination is
deferred and Petitions for recall under Section 311 Cr.P.C are entertained of
late, the witnesses are summoned at the whims and fancies of the accused. It
amounts to harassing the witnesses by the accused, thereby violating the
right of the witnesses, who are also protected by the Constitutional
provisions of fair trial.
7. The decision of the Hon'ble Supreme Court in Vinod Kumar
Vs. State of Punjab reported in 2015(1) MLJ (crl) 288 (SC), had deprecated
the process to recall the witness at the whims and fancies of the accused and
their counsels also. In the same judgment, the Hon'ble Supreme Court had
deprecated the practice of repeatedly allowing the Petitions under Section
311 Cr.P.C leniently. Therefore, in the said judgment, the Hon'ble Supreme
Court had issued directions to all the High Courts in the Country to circulate
this judgment to all the trial Judges in the respective State.
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8. In the light of the above Ruling having been circulated
throughout the Country, this having judicial notice to the Court, the Court
exercising Power under Section 482 of the Code of Criminal Procedure
cannot dilute the Ruling of the Hon'ble Supreme Court. Therefore, this is
not a fit case. Hence, this Criminal Original Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed.
Internet:Yes./No 08.01.2024
Index:Yes/No
NCC : Yes/No
Ls
To
1.The Judicial Magistrate No.II,
Sivakasi.
2.The Sub Inspector of Police
Thiruthangal Police Station.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
SATHI KUMAR SUKUMARA KURUP, J.
LS
08.01.2024
https://www.mhc.tn.gov.in/judis
