Madras High Court
Ragu Ganesh vs State Of Tamil Nadu on 21 October, 2024
Crl.OP(MD)Nos.17714 and 17803 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21/10/2024
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.OP(MD)Nos.17714 and 17803 of 2024
(1)Crl.OP(MD)No.17714 of 2024:-
Ragu Ganesh : Petitioner/A3
Vs.
State of Tamil Nadu
Additional Superintendent of Police,
CBI/SCU-V/SC-II,
New Delhi. : Respondent/
(Cr.No.RC 050 2020 S008/2020) Complainant
(Cr.No.RC 050 2020 S009/2020)
Prayer: This Criminal Original Petition is filed
under section 528 B.N.S.S, to set aside the order passed in
Cr.M.P No.2357 of 2024 in SC No.470 of 2020, dated
13/09/2024 on the file of the I Additional District and
Sessions Judge, Madurai, Madurai District.
For Petitioner : Mr.KA.Ramakrishnan
For Respondent : Mr.C.Muthu Saravanan
Special Public Prosecutor
for CBI
(2)Crl.OP(MD)No.17803 of 2024:-
Ragu Ganesh : Petitioner/A3
Vs.
State of Tamil Nadu
Additional Superintendent of Police,
CBI/SCU-V/SC-II,
New Delhi. : Respondent/
(Cr.No.RC 050 2020 S008/2020) Complainant
(Cr.No.RC 050 2020 S009/2020)
https://www.mhc.tn.gov.in/judis
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Crl.OP(MD)Nos.17714 and 17803 of 2024
Prayer: This Criminal Original Petition is filed
under section 528 B.N.S.S, to set aside the order passed in
Cr.M.P No.2356 of 2024 in SC No.470 of 2020, dated
13/09/2024 on the file of the I Additional District and
Sessions Judge, Madurai, Madurai District.
For Petitioner : Mr.KA.Ramakrishnan
For Respondent : Mr.C.Muthu Saravanan
Special Public Prosecutor
for CBI
COMMON ORDER
These Criminal Original Petitions are filed seeking
to set aside the order passed in Cr.M.P Nos.2356 and 2357
of 2024 in SC No.470 of 2020, dated 13/09/2024 by the I
Additional District and Sessions Judge, Madurai, Madurai
District.
2.Facts in brief:-
The petitioner is facing the charges under sections
342, 201, 193, 211, 218, 302 and 109 IPC before the trial
court. During the course of trial, the Doctor, who
conducted postmortem of the deceased Benniks and Jeyaraj
was examined as PW43 on 13/09/2022. His earlier counsel
commenced the cross examination. At that time, the co-
accused submitted that they have not cross examined the eye
witnesses. So, further examination of PW43 must be
deferred. At the request made by the co-accused, he stopped
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Crl.OP(MD)Nos.17714 and 17803 of 2024
the cross examination in part and represented that he will
complete the cross examination after the examination of the
other witnesses.
3.PW43 was brought for cross examination on
07/03/2023. But on that date, the counsel on record was
sick having suffered cardiac problem, undertaken open heart
surgery and was advised to take bed-rest. He was unable to
continue the case on behalf of the petitioner herein. So,
another counsel was engaged by the petitioner. At that time
only, the present Advocate came to know that PW43 was not
fully cross examined on the side of the petitioner. So, the
present application was filed for recalling PW43. That was
numbered by the trial court in Crl.MP No.2357 of 2024.
4.Similarly, another application was taken out
before the trial court in Crl.MP No.2356 of 2024 to recall
PW36, the learned Judicial Magistrate, Sathankulam who
recorded the statement of the witness namely Revathy under
section 164 Cr.P.C. Stating the very same reason that when
PW36 was cross examined on 22/07/2022, his earlier counsel
was sick and could not cross examine PW36. Now PW36 sought
to be recalled for cross examination.
5.Both applications were taken up together by the
trial court. By the impugned orders, dated 13/09/2024
dismissed both applications.
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Crl.OP(MD)Nos.17714 and 17803 of 2024
6.Against which, these two separate petitions are
filed to set aside the order of dismissal.
7.Heard both sides.
8.'Whether this petitioner wants to add some more
pages to the cross examination of PW36 and PW43' was the
question put to the learned counsel, who is appearing for
the petitioner, when it was brought to the notice of this
court that PW43 was in the box for more than 8 days. He was
cross examined to cover more than 86 pages. PW36 was also
cross examined for more than 19 pages.
9.The learned counsel appearing for the petitioner
would submit that that is not his intention. Even as per
the record of proceeding of the trial court, it has been
clearly recorded that at one point of time, at the instance
of the co-accused, he stopped his cross examination of
PW43. Later, his counsel became sick, underwent open heart
surgery and bedridden. So, the petitioner engaged the
present Advocate to continue the trial. The very same thing
happened to PW36 also. When he was cross examined by the
co-accused, his earlier counsel was sick as stated above.
That fact was also recorded by the trial court. Since, the
petitioner is facing serious charges under sections 302 IPC
and other IPC offences, opportunity must be given to him to
complete the cross examination.
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Crl.OP(MD)Nos.17714 and 17803 of 2024
10.Per contra, the learned Special Pubic Prosecutor
appearing for the respondent would submit that repeated
directions were issued by the higher Courts to complete the
trial process, but it could not be completed because of the
marathon cross examination made by the accused. Even if the
earlier counsel was sick, the petitioner ought to have
arranged alternative to continue the cross examination. So,
according to him, now the Investigating Officer is in the
box. At the length of this time, if the cross examination
of PW43 and PW36 are permitted, then he will fill up the
lacuna. Further, it is submitted that this court can
permit recall only if the petitioner is able to show that
his case fit into the parameters set out by the Hon'ble
Supreme Court in the Judgment reported in AG Vs. Shv Kumar
Yadav and another (2016-1-L.W.(Crl)561). It is well settled
proposition of law now for recalling a witness for whatever
purpose.
11.The Hon'ble Supreme Court further clarified the
principle in the judgment reported in Varsha Garg Vs. The State of
Madhya Pradesh & Ors. (2022 SCC Online SC 986) that
“The resultant filing of
loopholes on account of allowing an
application under section 311 is merely
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Crl.OP(MD)Nos.17714 and 17803 of 2024
a subsidiary and the court's
determination of the application should
only be based on the test of the
essentiality of the evidence.”
12.So this is a guiding principle to test the
petition under section 311 Cr.P.C. Only on that account, I
made it clear to the counsel appearing for the petitioner
that unless he is able to convince the court, on which
vital point the co-accused failed to cross examine both the
witnesses, are disclosed, he will be out of the court. But
a cautious reply was given by the learned counsel appearing
for the petitioner that if it is disclosed, then it will
cause prejudice to his case during cross examination and
give alert to the witnesses.
13.But I am unable to convince with this reply. I
made it clear that I will go through the entire cross
examination of the co-accused of both the witnesses.
14.No doubt that earlier counsel of the petitioner
was sick because of the heart ailment and could not conduct
his case. It was also born out by records now produced
before this court, Mr.R.Subramaniya Adhityan, learned
counsel appearing for the petitioner was admitted for
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Crl.OP(MD)Nos.17714 and 17803 of 2024
cardiac illness. But this situation was considered by the
Hon'ble Supreme Court in the judgment cited by the
respondent. I do not want to enter into that aspect. But I
will confine only with regard to the above said proposition
set out.
15.In the light of the above said, we will peruse
the copy of the deposition of PW43. It stands out that the
contention raised by the petitioner that he stopped the
further cross examination at the instance of the other
accused is not correct on record. The petitioner cross
examined the witness and when the cross examination of A1,
A2, A4 to A9 was called, they submitted before the trial
court that till the cross examination of LW9 dispensing was
requested. To that effect, they have also filed an
application. That was allowed. So, further cross
examination of PW43 by A1, A2, A4 to A9 was alone deferred.
So, the first contention on the part of the petitioner is
not available to him. Even otherwise, as stated by the
trial court, the present counsel came on record on
18/10/2023. Only at that time, the present applications
came to be filed. More-over, reading of the deposition of
PW43 shows that extensive cross examination was made by the
co-accused touching even minutest details. So, there is no
occasion to show that there is miscarriage of justice in
dismissing the applications filed by the petitioner by the
trial court.
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Crl.OP(MD)Nos.17714 and 17803 of 2024
16.Coming to PW36, as stated above, he recorded the
witness statement of Ravathi, who was subsequently examined
as witness on the side of the prosecution. On the date of
the cross examination of PW36, it was submitted by the
petitioner that his Advocate on record is sick. But even
for him also, extensive cross examination was also made by
the co-accused. So, here also the miscarriage of justice as
pointed by the petitioner does not arise.
17.For all those reasons, I am of the considered
view that the impugned orders passed by the trial court are
perfectly legal and no interference is called for.
18.In the result, both criminal original petitions
are dismissed, confirming the orders passed by the trial
court.
Index : Yes/No 21/10/2024
Internet : Yes/No
er
To,
The I Additional District and Sessions Judge,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.OP(MD)Nos.17714 and 17803 of 2024
G.ILANGOVAN,J
er
Crl.OP(MD)Nos.17714 and 17903 of 2024
21/10/2024
https://www.mhc.tn.gov.in/judis
